This is an appeal from a judgment rendered by Judge Dungan, to whom the cause had been referred, striking out a complaint upon the ground that it disclosed no cause of action.

The action was brought against the defendant as the executor of the estate of Camillas G. Kidder, on a lease entered into between the plaintiff and Mr. Kidder, for certain rooms in nil office building in New York City. The case was tried originally before the court and jury, and the judge directed a verdict for the plaintiff. On appeal the Court of Errors and Appeals reversed the judgment, declaring that it was not only wrong, but that “in fact there should have been a direction the other way if moved for/’

*156Upon the return of the case for retrial, defendant moved to strike out the complaint, which, motion was granted, and that action is the subject-matter of this appeal. We think that, in view of the language of the Court of Errors and Appeals, the .action of the trial judge Avas correct. The conclusion is that, under'the lease, the defendant's estate ivas not liable. The case is one practically of stare decisis.

We do not think that the complaint as it stands, which alleges liability upon the lease, would have justified a recovery upon any theory suggested in the briefs of counsel for the appellant.

The judgment will therefore he affirmed.