Bissell commenced this action to obtain judgment for the possession of real estate and damages for *189the detention thereof. Issue was formed by a denial; trial by the court; finding for the plaintiff, and, over a motion for a new trial, judgment was rendered in his favor for possession .and $100 damages.

The overruling of the motion for a new trial has been assigned as error. The reasons for a new trial were: The finding was not sustained by the evidence, and was contrary to .law. The defence relied upon was, that the defendants occupied the premises as tenants of the plaintiff. It was shown by the evidence, and admitted by the defendants, that the plaintiff held the legal title to the premises. Plaintiff’s agent testified that there was a talk with defendants about renting; that he asked as plaintiff’s agent $40 per month rent, and defendants only offered $25; that “ after looking the premises over together, and again discussing the question of rental, I left him stating, that as we differed so materially, we would let the matter rest until Mr. Drew should come up to the city. He has not come yet. Afterwards, I was instructed by Mr. Bis-sell to get possession, and accordingly notified Mr. Smith that we must have possession.” And although Mr. Smith testified that there was an agreement for him to occupy the premises •and pay rent, still the evidence on behalf of the appellee tended to support the finding of the court, and in such cases this court will not undertake to weigh the evidence and disturb the finding.

There was no error in overruling the motion for a new trial. The judgment below ought to be affirmed.

Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment of the superior court in general term, affirming the judgment in special term, be and the same is in all things affirmed, with costs.

Elliott, C. J., having tried the case, did not participate.