Moskowitz v. Eastern Brewing Co.

PER CURIAM. This action was plainly tried on the theory that defendant was liable for rent, if at all, on the sole ground of being the assignee of a written lease and in possession of the premises, and plaintiff cannot shift his ground on appeal, but must be held to the theory of his trial. Snider v. Snider, 160 N. Y. 155, 54JNÍ. E. 676. It is very clear from the testimony that no written assignment of the five-year lease was ever made to defendant, and, under the statute of [1018] frauds, which was' pleaded in this case, the assignment of the lease would necessarily be made in writing, or it would be void, so that, as there was no assignment in this case, the defendant could not be held liable. Bedford v. Terhune, 30 N. Y. 459, 86 Am. Dec. 394. It is true that, if defendant was shown to be in possession and paying rent, this would be presumptive evidence that it had accepted and held an assignment of the lease; but this possession could not estop it from showing that it never acquired a valid assignment of the lease, and, as this did appear, defendant could not be held. Welsh v. Schuyler, 6 Daly, 412; Dey v. Greenebaum, 82 Hun, 536, 31 N. Y. Supp. 610; Frank v. N. Y., L. E. & W. R. R. Co., 122 N. Y. 197, 25 N. E. 332. The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.