¶1The plaintiff appears to have mistaken the form of his action for rent, which he claimed to be in arrear from the 1st of October, 1837, to 1st of May, 1838. Instead of assumpsit for use and occupation, he should have sued upon the lease; and upon the facts as they appear in this case, and on the authority of Armstrong v. Wheeler, (9 Cowen, 88;) Williams v. Woodward, (2 Wend. 487;) and Quackenbush v. Clark, (12 Id. 555,) the jury would have been warranted in finding that the defendant Wilson was the assignee or owner of the lease, and as such in possession during that time, and consequently liable in Covenant for the rent which accrued while he remained such owner, by virtue of his privity of estate with the lessor. The action'for use and occupation will not lie in the presence of an outstanding subsisting lease of the same premises; unless upon evidence that the defendant or occupier went into possession under some new and distinct agreement of letting and hiring between him and the landlord. Whether there be such new agreement and .possession under it, is matter of fact for the jury. Such was the case in 1 Carr, & Kirwan’s Rep. 14. Now here the plaintiff adduced no evidence of any such new agreement, under which the defendant Wilson went into possession. There was no privity of contract between them shown; no proof from which the jury could infer “ use and occupation,” except under the lease itself. The judge’s charge was such as he ought to have given had it been an action of covenant on the lease seeking to make Wilson liable as assignee; and the verdict would have been right enough, in *270such an action. But the charge, and the finding, Were misplaced in the action of assumpsit.
¶2There must be a new trial, unless the plaintiff elects to take a judgment for $106,67 and the interest thereon, being for two months’ rent from the 1st of August to the 1st of October, paid to the defendant by the lessees, which money the plaintiff is clearly entitled to recover in this action, and on the count for money had and received.