46 Misc. 584 | N.Y. App. Term. | 1905
In this proceeding to dispossess tenants for holding over there have been three trials and'two previous appeals to this court. Upon the first, appeal a final order in favor of the landlord was reversed because there was a failure of proof of the landlord’s right to possession under the allegations of the petition. 85 N. Y. Supp. 354. Upon a retrial a final order was made in favor of the tenants which was reversed on appeal because it was considered that upon the evidence then presented it had been sufficiently established- that the tenant held under a lease originally made to one Horan, and was not a tenant at will or sufferance, and, therefore, that the landlord had made out a case under his petition. 89 N. Y. Supp. 16. The claim of the plaintiff is that the tenant Eastern Brewing Company went into possession of the premises in question under a lease made to one Horan in 1893, which expired on May 1, 1903, and without detailing the evidence it is sufficient to say that upon the testimony and the stipulations in the present record that claim is abundantly sustained. Up to the present trial the tenant appears to have relied upon what it assumed to be the failure of the landlord to establish this claim, but that reliance having been destroyed by the latest opinion in this court, the tenant now falls back upon a defense contained in its answer to the effect that in March, 1902, fourteen months before the Horan lease expired, the landlord made a verbal
O’Gorman and Blanchard, JJ., concur.
Final order reversed and hew trial granted, with costs to appellant to abide event.