The affirmative of the only issue joined, is clearly with the defendant, and he must begin.
The defendant, Howard, in the year 1842, demised certain premises in Fulton street, in the city of New York, to Vecchio, senior, the father of the plaintiff, for one year, at a rent of $800, payable quarterly. In the month of February, 1843, the tenant being in arrear, the landlord came to his store, and proposed to his son (not the plaintiff,) that he would take in payment, for the rent arrear and the rent to accrue up to the end of the term, a certain painting of Washington; to this the son replied that his father had been offered $1000 for it. The landlord then stated that he would take the picture, and if the fenant could find a purchaser for it at that price within one year, he would take his rent out of the proceeds, and pay over to him the balance. The son reported this conversation to his father and to his brother, the plaintiff, who was then the owner of the picture; they assented to the proposal, but such assent was never communicated to the defendant. On the day following the conversation, the picture was sent to defendant’s house. In the month of May, shortly after the close of the demise, the picture was returned by the landlord to the tenant, who still occupied the same premises on a new demise, and was immediately afterwards seized with other property, by the landlord, under a distress warrant for rent arrear. Vecchio, Jr., the plaintiff, replevied the whole of the property seized, the picture included, claiming to be owner.
*349Anthon insisted that this evidence, if it proved anything, showed a special contract of accord find satisfaction, in fieri, at the time of the distress, and, if of any value, ought to have been made the subject of a special plea, and did not sustain the plea of H no rent arrear.” He also contended that, to make the proposition of the defendant a valid contract, conveying to him the title to the picture, and discharging the rent, there ought to have been evidence of an express communication to the defendant of the assent of the plaintiff.
Kent, C. J. I think the evidence is legally applicable to the plea, and if the jury find the contract, that there has been payment.
The counsel for the defendant, in arguing to the jury on the question of contract, pressed into his service the affidavit of the landlord of rent arrear, accompanying the distress warrant which had been read to the jury by plaintiff. And also the affidavit of ownership on the part of the plaintiff, required by the statute to authorize the writ of replevin. To this the counsel for the plaintiff objected, and the court ruled that said affidavits were not to be considered in evidence, and could not be alluded to.(1)
*350It was finally left, by the judge, to the jury, to say whether there was such a contract, and they found that fact in the negative, and there was
Verdict for defendant for his rent, &c.(2)
Brady, for plaintiff.
Anthon, for defendant.