Wadman

This is an appeal from an order denying defendants' motion for a new trial. The action was instituted April 28, 1897, to obtain an injunction restraining the defendants from selling and removing certain saloon fixtures from a building belonging to the estate of the plaintiffs' testatrix. On the 26th of March, 1888, defendant Burke leased from Lawrence Kelly, then the owner, the premises at the northeast corner of Valencia and Twenty-sixth streets, in the city and county of San Francisco, for the term of five years from the first day of September following, at the monthly rental of seventy-five dollars per month, payable in advance on the first day of each and every month during said term. Said lease also contained a covenant for the renewal for the further term of five years at the monthly rental of one hundred dollars per month. Before the expiration of the term created by this lease said Lawrence Kelly granted and transferred the premises described therein to Ellen Kelly, the testatrix of these plaintiffs. The court found that after the said defendant Burke was let into possession of the premises in question, under and in pursuance of said lease, and during the autumn of 1888,…

I dissent. I think, in substance, the new contract was a renewal of the old lease, and was so understood and intended. LORIGAN, J. I concur in the dissent of Justice Shaw for the reason given by him.