¶1By the Court,
¶2Appellants, under a lease from respondent, entered and enjoyed undisturbed possession of certain premises for their term; surrendered possession to their lessor; paid him a portion of the rent; refused payment of the balance, which they paid upon a judgment obtained long after the termination of their tenancy by certain parties claiming to be *129co-tenants of the lessor. This was pleaded as defense to the action of respondent to recover the balance of rent to him unpaid. The. district court refused to allow proof to support the plea. This is assigned as error.
¶3"Whatever view may be taken of the nature of the action, the testimony was inadmissible. Appellants had enjoyed their term and received all that they had bargained for. It was not for them to be picking flaws in respondent’s title nor to select some other to whom to pay the rent. If they feared any double payment, — admitting now that any such suit as that instituted against them by lessor’s co-tenants could have been properly maintained, — they could have escaped any liability by bill of interpleader. Vernam v. Smith, 15 N. Y. (1 Smith) 328.
¶4The instruction excepted to was under the previous ruling of the court perfectly proper; it simply warned the jury against the consideration of evidence offered, but excluded. There was some evidence tending to support the claim for damages, and no contradiction thereof; so this court, under the rule so often reiterated as to become somewhat monotonous, must decline to interfere with the order refusing a new trial.
¶5The judgment and order are affirmed.