69 N.Y.S. 576 | N.Y. App. Div. | 1901
■ This is an appeal by the defendant from a judgment of the Municipal Court- for the plaintiff, the assignee of O’Reilly. Hunt, by lease under seal, let certain premises to O’Reilly, who never took possession, but let defendant into possession by what O’Reilly claimed was a lease from month to month. In August, 1899, O’Reilly sought to dispossess the defendant as a holdover, but defendant had judgment. Subsequeñtly, O’Reilly proceeded to dispossess the defendant for .non-payment of rent, but the defendant had judgment that he was the equitable assignee of the lease. While these proceedings were being tried and while defendant was in possession O’Reilly paid to the landlord the rent of the premises 'for August, September, October and November,, 1899. O’Reilly’s assignee of the claim for the rent so paid by O’Reilly has recovered this judgment for the. amount thus paid. The sole contention of the appellant is that O’Reilly was. a volunteer, and that, therefore, this action did not lie. If O’Reilly was lawfully answerable to the landlord for the claim paid by him, then he was not a volunteer. (Koehler v. Hughes, 148 N. Y. 507, 511, citing Sanford v. McLean, 3 Paige,
The judgment must be affirmed, with costs.
All concurred.
Judgment of the Municipal Court affirmed, with costs.