#### Reuben M. Manley, as Executor of the Estate of Mary A. Manley, Deceased, Respondent, *v.*Charles Winkler, Appellant.

(Supreme Court, Appellate Term,

March, 1912.)

Landlord and . tenant — Leases and agreements in general — Rent and advances.

Where a corporation, contemplated by the individual who executed a lease under seal, went into possession, occupied the premises and attached its corporate seal to an extension of the lease, and during all the period of the leasing the rent was paid to the lessor hy the checks of the corporation, the legal presumption is that its occupation of the premises was as assignee and not as sublessee; .and a holding over after the expiration of the extended term is that of the corporation and the landlord cannot recover of one of the original lessees the rent subsequently accruing.

Appeal .by defendant from a judgment of the Municipal Court of the city of Few York, -borough of Manhattan, first district, in favor of plaintiff for $519.39, after a trial by a judge without a jury.

Ira Bliss Stewart, for appellant.

George Murray Brooks, for respondent.

Bijur, J.

On-December 10, 1906, the Estate of Mary Manley leased, in writing, certain premises in this city to one Bass, .one Reich and the defendant, Winkler. On December 23, 1907, by an indorsement on the instrument, the lease was renewed for one year. After the expiration of the ex*638tended term, namely, after January 31, 1909, there was a holding over, and plaintiff sues this defendant to recover the rent for June, July and August, 1909, having recovered in a prior action against Bass and Reich. The original lease; signed by each of the three parties, is under' seal. The exr tension is similarly executed, but in addition there is an imprint of the corporate seal of “ Bass & Winkler Company.”

It appears that, at the time of the signing of the original lease, the three individual lessees contemplated the formation of this corporation; that the corporation went into possession shortly after; that, at the time of the signing of the extension, the corporation was actually, and remained, in possession of ' the entire premises; and that during all this period the rents were paid by the corporation by checks over its corporate name. In December, 1908, the defendant left the city and was not again upon the premises except possibly casually in June or July, 1909.

On February 1, 1909, when the holding over commenced, the corporation was and had been in possession, the landlord receiving rent therefrom *eo nomine.*From this respondent admits the law will ordinarily presume that the occupation of the corporation was as assignee and not as sublessee. The holding over was, therefore, that of the corporation. See also Ely v. Winans, 88 N. Y. Supp. 929 ; 24 Cyc. 977. Moreover, even though defendant knew of the holding over by the corporation,- that would not constitute an election on his part to extend his term. Moore v. McCarthy, 4 Hun, 261. Respondent cites Day v. Greenbaum, 82 Hun, 533, but that case has no application because the cause of action there arose before the termination of the lease and one of the lessees was still in possession.

Appellant’s preliminary point that plaintiff did not prove his appointment as executor cannot be availed of at this time, as it was not stated as one of the grounds of the motion to dismiss the complaint at the close of plaintiff’s case.

Seabury and Guy, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.