Carr, J.:
The plaintiff has recovered a judgment in the Municipal Court, in the borough of Brooklyn, against the defendant for the sum of $152. From this judgment the defendant appeals. The pleadings were in writing. The cause of action set forth in the complaint was that the plaintiff had leased certain premises in the borough of Brooklyn to a corporation known as the Federal Brewing Company for a term of four years and nine months, beginning August 4, 1906, at an annual rental of *652$1,620, payable in monthly installments of $135; that the Federal Brewing Company entered into possession of .the . premises and subsequently assigned the lease to the defendant by an instrument in writing in which the defendant “ assumed the obligations, covenants and conditions of said lease, and duly entered into possession of the said demised premises; ” and, that the defendant has neglected and refused to pay the monthly installment ■ which fell due on November 1, 1908. These allegations as to the assignment of the lease were put. ■ in issue by the answer. On the trial the plaintiff gave no evidence of any assignment in writing, or otherwise, of the léase from the Federal Brewing Company, but. it gave evidence showing .that the defendant went into possession of the premises «and paid to the plaintiff the monthly installments of rent provided for in the lease for a period of considerably over a year. Under these circumstances, the plaintiff made out a prima facie case that there h'ad been a due assignment of the' lease to the' defendant, that it held possession of the demised premises by privity of estate under the lease - by virtue of an assignment. For under such circumstances the law presumes an assignment. r (Bedford v. Terhune, 30 N. Y. 453; Dickinson Co. v. Fitterling, 69 Minn. 162" court="Minn." date_filed="1897-06-29" href="https://app.midpage.ai/document/dickinson-co-v-fitterling-7970004?utm_source=webapp" opinion_id="7970004">69 Minn. 162.) This presumption is not absolute, and it may be rebutted by proof that there was in fact or intent no actual assignment or no valid assignment of the lease under which any privity of estate was acquired by the new' occupant of the demised premises, (Welsh v. Schuyler, 6 Daly, 412" court="None" date_filed="1876-04-03" href="https://app.midpage.ai/document/welsh-v-schuyler-6140461?utm_source=webapp" opinion_id="6140461">6 Daly, 412; Cross v. Upson, 17 Wis. 618.) In the case at bar the defendant gave some' evidence showing that no assignment of the lease in question had been made' to it, and endeavored to give further proof as to the understanding between' it and the original lessee, the Federal Brewing Company, as to the lease in question.. This proof was excluded on objection, and an exception was taken. This ruling was error, as the evidence offered was admissible,. (Welsh v. Schuyler, supra; Bagley v. Freeman, 1 Hilt. 196" court="None" date_filed="1856-07-15" href="https://app.midpage.ai/document/bagley-v-freeman-6143491?utm_source=webapp" opinion_id="6143491">1 Hilt. 196; Dey v. Greenebaum, 82 Hun, 533" court="N.Y. Sup. Ct." date_filed="1894-12-14" href="https://app.midpage.ai/document/day-v-greenebaum-5507735?utm_source=webapp" opinion_id="5507735">82 Hun, 533.)
The issue tendered by the pleadings was that the defendant was ah assignee of the lease with a privity of estate. The judgment entered upon such an issue would create a bar in *653favor of the plaintiff against the defendant in an action brought to recover subsequent installments óf rent under the lease. It should not be sustained on any theory other than that set forth in the pleadings. Some attempt, was made to amend the pleadings at the close of the case, but the application for an amendment was made only conditionally, and no decision on the application was made by the trial court. The plaintiff then declared that he stood on the theory of his pleading.
The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.
Jerks, P. J., Burr, Thomas and Woodward, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.