(77 Hun, 198.)

#### COLE v. SANFORD et al.

(Supreme Court, General Term, First Department.

April 13, 1894.)

Landlord and Tenant—Renewal of Lease—Presumption.

Where a landlord permits his tenant to occupy the premises after the expiration of the term, and accepts rent from him at the rate established in a lease, the lease is presumed to be renewed for another year; and such presumption is not rebutted by the fact that the tenant, after eviction, paid rent up to the day thereof.

Action by Samuel Cole against Samuel B. Sanford, George Boheny, and Charles C. Pope, as executors and trustees under the *354will of J. Monroe Taylor, deceased. Plaintiff moves for a new trial on a case and exceptions ordered to be heard at general term in the first instance. Granted.

In April, 1886, Jefferson M. Levy and Henry L. Clinton were the owners of the fee of Nos. 39 and 41 Cortland street, and remained so until 1887, when they conveyed it to J. Monroe Taylor, who remained the owner until May, 1892, when he died, leaving a last will and testament, which was duly probated June 7, 1892, and letters testamentary thereon were issued to the defendants. On April 24, 1886, Levy and Clinton leased the 2d, 3d, 4th, and 5th stories of the premises to the plaintiff for three years from May 1, 1886, for a yearly rental of 83,800, payable in advance,—8316.66 on the 1st day of every month. The lease contained a covenant that it might be renewed for two years from May 1, 1889, for a yearly rental of 84,000, payable monthly in advance,—8333.33 on the 1st day of every month. May 1, 1886, the plaintiff, as lessee, entered into possession of the leased premises, and occupied them as an hotel. When the premises were conveyed to Taylor, he took an assignment of the lease from the lessors, and the plaintiff attorned to him. Taylor, defendants’ testator, renewed the lease for two years, at the stipulated rent of 84,000, which term ended May 1, 1891. The plaintiff continued to use the premises for the purpose of an hotel until July 16, 1891, when he was forcibly evicted by the defendants’ testator. The defendants concede that the rent was paid to June 1, 1891, and that September 11, 1891, Taylor, the lessor, began an action in the city court of Brooklyn to recover 8500, the rent from June 1, 1891, to July 16, 1891, at the rate of 84,000 per year, and 8106.40 Croton water tax, which, it is alleged, the lessee agreed to pay. .September 30, 1891, the plaintiff herein paid the rent to July 16th, together with the costs of the action, which was discontinued. This action was begun August 11, 1891, to recover damages sustained by the eviction. The defendant answered, and after his death the action was revived, and continued against these defendants, his executors.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Benjamin Scharps, for appellant.

De Witt C. Brown, for respondents.

FOLLETT, J.

The right by which the. plaintiff claims to have occupied the premises is not set forth in his complaint, but it appears by the answer and the concessions on the trial that he was a lessee. By these concessions it appears that his lease expired on the 1st day of May, 1891, and that he paid, and Taylor accepted, $333.33, the rent for that month, but the circumstances under which the payment was made are not disclosed by the concessions nor by the evidence. The landlord having permitted the tenant to occupy the leased premises after the expiration of the term, and having accepted a month’s rent from him at the rate stipulated in the lease, a presumption is raised that the lease had been renewed for another year. Clarke v. Howland, 85 N. Y. 204; Schuyler v. Smith, 51 N. Y. 309; Laughran v. Smith, 75 N. Y. 205; 4 Kent, Comm. (13th Ed.) 114, note x; Wood, Landl. & Ten. 76.

The complaint in the action for rent brought in the city court of Brooklyn contains allegations which, if they had been established, would have constituted a defense to this action, provided the eviction was effected at the proper time and in the proper manner; but that complaint, though introduced in evidence, is no evidence of the truth of the allegations therein contained. The rent for *355June and July, 1891, fell due on the 1st days of those months; so there was, by the terms of the lease, two months’ rent due when the tenant was evicted, and it is well settled that an unlawful eviction is not a defense. We are not spealdng of counterclaim to an action brought for the recovery of the rent due and payable before the eviction. Giles v. Comstock, 4 N. Y. 270; O’Brien v. Smith (Sup.) 13 N. Y. Supp. 408. And the fact that the tenant, after his eviction, paid rent up to the date thereof, does not rebut the presumption that he was entitled to occupy the premises for another year. The presumption that the lease was renewed for another year, arising from permitting the tenant to hold over and accepting rent from him, is a rebuttable one, and it may be that the defendants, on a new trial, will be able to show that the plaintiff held over under terms justifying their testator in evicting him; but nothing of the kind was shown on this trial, and the plaintiff’s exceptions must be sustained, and his motion for a new trial granted, with costs to him, to abide the event. All concur.