Appeal from the County Court, County of Los Angeles.

This is the second appeal in the above cause. The first is reported in 47 Cal. 180, where the facts are stated. Upon the reversal of the judgment, and the granting of a new trial as stated in the opinion in 47 Cal. • and when the remittitur had been filed with the Clerk of the Court below, the defendant moved to be restored to the possession of the hotel. He had, when the judgment in favor of Pico was rendered, been turned out of possession under a writ of restitution, and Pico had rented the hotel to one Knowlton, who took the lease with knowledge of the pendency of the action, and of the appeal.

On the hearing of the defendant’s motion to be restored to the possession, the plaintiff, Pico, filed an affidavit of Charles Knowlton, stating that he had, on the 24th of March, 1873, leased the hotel and furniture from Pico, for the term of two years, upon the payment of a monthly rent of seven hundred and fifty dollars. The affidavit then proceeded thus:

“For further answer, he avers it is true he had ‘ knowledge of the suit adjudicated in the County Court, and of its pendency on appeal in the Supreme Court,’ but avers that he had knowledge at the same time that said Cuyas had disavowed any right to the possession in his own right, and only claimed to have previously had some right to such possession as the member of a partnership which had long before that time been dissolved. As respects the decision of the Supreme Court, respondent avers that the same was not rendered until long after the execution of his said lease and his entry thereunder upon said premises, and that, therefore, he could«not have had any knowledge of the same prior to his said entry.

“Further answering, respondent'avers that he has been informed and verily believes that said Cuyas has no right, interest or estate whatever in said Pico House or in said furniture, or in any part of either, and no right in the possession of the same; that said Pico did, long prior to the execution of respondent’s lease, make what purported to be a lease of the said house alone to the said Cuyas; that said so-called lease never, in point of fact, went into operation or vested in said Cuyas, any right whatever to the possession of said house; that said Cuyas never entered into possession of said house under said so-called lease or paid any rent in accordance with its terms, but that the only entry thereon ever made, and the only possession ever had by him of said house was rendered in pursuance of an alleged partnership in the business of hotel keeping entered into by said Cuyas and said Pico.

“That said so-called lease was, as claimed and asserted by said Cuyas, wholly suspended and set aside by the terms of said alleged partnership, and the effect thereof as a lease destroyed; that said Cuyas, at divers times and upon divers occasions, and especially upon the trial in the County Court of the cause of Pico v. Cuyas, referred to in the affidavit of said Cuyas, stated upon oath that the said so-called lease to him had been merged and superseded by the said partnership, and the said Cuyas upon that and other occasions further stated that he had no interest whatever in said furniture, but that the same was wholly owned by the said Pico; that before accepting the lease aforesaid, respondent had full notice of the foregoing and other statements and declarations of said Cuyas; and further, that if any partnership had ever in fact existed between said Pico and Cuyas, the same had been long before that time wholly dissolved; that respondent, relying on the statement and representations of said Cuyas respecting the said so-called lease, and knowing that said partnership, if it had ever existed, had been dissolved, was induced thereby to take the lease aforesaid from said Pico.”

The Court below denied the defendant’s motion. to be restored to the possession, and he appealed from the order.