majority">Alfred J. Cawse, Jr., J.

In this case the plaintiff as administratrix of the estate of Pasquale Vaglio brings this action against the defendants for moneys allegedly due the plaintiff intestate for rent of the upper floor of premises 1325 Richmond Avenue.

It is claimed that the said Vaglio was a life tenant in part of said premises and entitled to the rents and income therefrom from June, 1949 to the date of his death in August, 1952. The pertinent facts are not in dispute and if plaintiff’s intestate was a life tenant, the plaintiff must prevail.

In order to determine whether he was such a life tenant it is necessary to examine the agreement between the defendants and plaintiff intestate. The agreement which was drawn by *21an attorney, John M. Braisted, a former Justice of this court, reads as follows: “Whereas, Pasquale Yaglio and Antonia Lanzillotti Yaglio, his wife, have conveyed to us certain premises in a deed bearing even date herewith, we hereby agree that the said Pasquale Yaglio and Antonia Lanzillotti Yaglio, may malee their home in said premises as long as they live.” [Italics supplied.]

It is noted that although the agreement was drawn by an experienced lawyer, the usual words denoting a life tenancy ‘ ‘ use and occupation ’ ’ were not used. It is the opinion of the court that the parties did not intend it to be such but the Yaglios merely wished to retain a right to occupy the upper apartment. Therefore, it was merely a right to occupancy as characterized in Carpenter v. Carpenter (131 N. Y. 101) cited with approval in Matter of Rogers (251 App. Div. 478) and other cases.

In view of the fact that it was a right of occupancy, the tenant could terminate it at his will which he apparently did in this case and, therefore, would not be entitled to the income.

All of the testimony of the witness Lucy Mataranglo with reference to conversations and transactions with the decedent Yaglio is stricken out as in violation of section 347 of the Civil Practice Act.

Judgment is, therefore, directed for the defendants.

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