Opinion
December Term, 1902.
Judgment reversed, new trial granted, costs to appellant to abide event.
There are three facts that did not appear at the former trial, but were established upon the new trial which, in our opinion, distinguish the case and make inapplicable the rule stated as controlling on the previous appeal. ( Valentine v. Healey, 1 App. Div. 502; 158 N.Y. 369.) The first is, the evidence now shows that Valentine joined in the original lease with Healey. The second is, that notice in writing was sent by Valentine to Healey, objecting to the firm's holding over or retaining the property unless it was taken for a year. The third fact, now clearly brought out, is that Healey did not undertake as a tenant in common to reinvest himself with possession, but that a different entity or firm, known as Healey Co., tenants under the old lease, held over and retained possession of the premises. The judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event. Patterson and Laughlin, JJ., concurred; Van Brunt, P.J., and McLaughlin, J., dissented.