#### Frank Moore, Respondent, *v.*William D. Chase, Appellant.

(Supreme Court, Appellate Term,

January, 1899.)

Xease — Acceptance by assignee who has not entered.

Although an assignee of a lease has never entered into possession of the demised premises, his payment of taxes thereon and of rent, pursuant to a judgment affecting them, creates an inference that he has accepted the lease and he will be liable for the rent.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, tenth district, rendered in favor of the plaintiff by the court, without ja jury, for the sum of $125.69 damages, with costs. The nature of the action and the material facts are stated in the opinion.

Walter S. Logan, and Charles M. Demond, for appellant.

Albert T. Patrick, for respondent.

Giegerich, J.

This action was brought for the recovery of $125, being one month’s rent, in Eeu of royalty, claimed to be due under a demise of certain phosphate lands situate in the County of Polk, State of Florida, and made on the 26th day of November, 1892, by Judson H. Tatum to Richard H. Foote, for a term of twenty years. The lease contains a certain covenant by the lessee to erect upon the property a mining driving plant with a daily capacity of not less than 100 tons, and upon its completion to pay the lessor a monthly rental of $125, which sum, however, was to be credited upon the payment bi-monthly of an agreed royalty of fifty cents per ton upon the output. The pleadings were oral and the answer a general denial. Ho interest is now held in the demised premises by any of the original parties to the same, the Knickerbocker Phosphate Co. having by *mesne*conveyances become the owner in fee, and the defendant having by assignment in Eke process succeeded to the rights of the lessee.

On January 10, 1895, the Knickerbocker Phosphate Co. made its promissory note to one William H. Moore, one of plaintiff’s predecessors in interest, for the sum of $5,000, and to secure the payment thereof with lawful interest, executed an assignment of *10all royalties due, or to become due, under the lease, which note, together with the accompanying assignment, was subsequently transferred by said Moore to one Albert T. Patrick, and thence by him to the present plaintiff. The defendant heretofore brought an action in the Supreme Court, Kings County, against the said Knickerbocker Phosphate Co. and another, for the purpose of-determining certain questions, among which were (1) the rights of those interested in the demised property; (2) the amount of rent due; (3) to whom such rent should be paid, and (4) relief from forfeiture of the lease for nonpayment of royalties, and in the course of litigation it was discovered that the plaintiff herein had become the owner and holder of the note and the accompanying assignment of royalties, and he was adjudged entitled to receive the sum of $395.50 as a balance due for such rents and royalties, to the exclusion of the owner in fee of said premises, to-wit, the said Knickerbocker Phosphate Co.

The defendant disclaims any liability on the theory that he has never entered into possession of the demised premises. But such occupancy is not essential to the plaintiff’s right of recovery, if reasonable inference can be had from the evidence of acceptance by him of the lease thereof. Moore v. Higgins, 5 N. Y. Supp. 895; 2 Silv. (S. C.) 298; 24 N. Y. St. Repr. 378; affirmed, Wells v. Higgins, 132 N. Y. 459; 2 McAdam on Landl. *&*Ten., Supp., § 132, p. 86. This conclusion, in my opinion, the proofs in this case amply warrant, because of the fact that not only did the "defendant, in October, 1896, pay taxes on the property to the amount of $325, but he, on November 4, 1896, and January 21, 1897, paid on account of the rent the respective sums of $325 and $4,500, and again on April 23, 1898, pursuant to the judgment just referred to, the further sum of $395.50. It also appears that, in accordance with the directions contained in the interlocutory and final judgments in said action, the Knickerbocker Phosphate Company executed and delivered to this defendant a release on quitclaim of the demised premises from the alleged forfeiture.

Both counsel have called our attention to a decision which has since been handed down by the Appellate Division of the Second Department, upon an appeal taken from the judgment adverted to, wherein the court has affirmed the judgment with certain modifications respecting the amount due for royalties, the practical effect thereof being that the sum heretofore found to be due for *11royalties was insufficient, and the court directed, in case the parties did not agree upon the result, that a reference be had for the purpose of ascertaining the actual amount due therefor. Chase v. Knickerbocker Phosphate Co., 32 App. Div. 400, 406, 407.

In this view, the rights of the defendant will not be prejudiced by an affirmance of the judgment in the present action, which, as seen, is brought for rent in lieu of royalty subsequently accruing.

The defendant contends, substantially, that in the case brought for relief from forfeiture there may be a direction by the court for the payment of a sum for royalties due antecedent to the rent here sought in excess possibly of that due upon the note and interest, in the event of the payment of which to the party or parties adjudged to be entitled thereto, the plaintiff in the present action would be without standing, and that a right of recovery of the rent in suit would be vested only in the owner of the fee. But as such action is of an equitable nature, where such relief only is administered as the nature of the case and the facts as they exist at the close of the litigation demand (Peck v. Goodberlett, 109 N. Y. 180, 189; Pond v. Harwood, 139 id. 111, 120; Dammert v. Osborn, 140 id. 30, 43, 44), the court has ample power to give such further directions with respect to the claim of the plaintiff upon the arrears of royalties as the justice of the case may require.

As we are satisfied, from a careful consideration of the record, that the decision of the justice was in all respects correct, the judgment shall be affirmed, with costs.

Beekman, P. J., and Gildersleeve, J., concur.

Judgment affirmed, with costs.