Page:Federal Reporter, 1st Series, Volume 8.djvu/709

 OOBB V. EIDB. 695 �' '■'■.-'■'' .'.1 .< '■ ■'■'•. ' ' �COBB V. BJIDD. �{Oireuit uourt,S. D.Nm Ym-k. Septembei* 7, 1881.) �l. Nbw Trial— Misihrect;on—Implied Aghbement to Pay Bent. �A new trial wiil not be granted on the ground of misdirection of the jury/ where, in an action brought by tenants in commoii joinily, but continued by the survivor after suggesting on the record the death of the other, to recover: what the naie and occupation of certain premises were reasonably worth, tha jury were instructed that the plaintifE was entitled to recover, if they found that the defendant remained in occupation under an implied agreement to pay' rent; and that an' agreement to pay rent would be implied, if the' defendant occupied the premises by the lessors' permission, 'v^ithout any underatanding that such occupation ghould be 'without compensation. �■ .Benedict, Taft <iiBenedict, tot -phArAiS, �C. Bainbridge Smith, for defendant.
 * Wa£iAce, D. J. The plaintiff feaving oJ)tfliJned a verdict upon tho

trial, the defendant now moves for a new trial. ; �The action is for use and occupation of certain preiniseB in the pity of New York. . The defendant originally entered into possession onder leases exeouted severally by the two ten£i,nt%iflL con^mon, who were thiS ownera of the premises. After the leases, expired, by a paroi agreement with the tenants in common the defendant was allowed to repiain until August 1, 1875, at a speeified rent, The evidence authorized the jury to find that, by the joint permission of, the lessors, the defendant was allowed to continue in the further occupation of the premises, without paying any rent, until Augupi 1$, 1875 ; and after that time, until the middle of Gctober, though the lessors desired possession of the premises and wighed them vaoated as soon as practicable, they acquiesced in the defendant's occupation of them for the accommodation of the defendant. After the suit was commeneed one of the lessors died, and this fact was suggested in the record upon the trial, and the action continued in the name of the survivor. �The jury were nstructed that the plaintiff was entitled to recover for use and occupation after August 15, 1875, if they found that the defendant remained in oceupatibn of the premises uhder an implied agreement to pay rent. . They were also instructed that an agreement to pay rent would be implied if the defendant ocoupied by the per- mission of the lessors and there was no understanding that euch oeeupation shouldbe; without compensation. �It is insisted that the^e instructions were erroneous,; that thQ plaintiff, as 6urvivor,cannot;£e,cpver for; more than bis moiety of the ��� �