#### Francis Cronin *et al.,*Respondents, *against*Simon Epstein, Appellant.

(Decided December 3d, 1888).

Under a lease of certain premises for a term of years from a certain May 1st, rent was to be payable monthly in advance and possession “ given on May 1st or sooner if alterations thereto are completed.” Attached to the lease was a memorandum providing for certain alterations on the premises, but no time was fixed for the completion of such alterations. They were not finished by May 1st, and on that date the lessee tendered the first installment of rent and demanded possession, to which answer was made that the alterations were not finished. *Held,*in an action against the surety on the lease to recover such installment, that the time fixed for possession was not imperative; and that the tender was not available as a defense, not being paid into court.

There being no ambiguity in the lease, parol evidence of an arrangement between the lessors and lessees as to the time of completing the alterations, made about the time of the execution of the lease, was inadmissible.

Appeal from a judgment of the General. Term of the City Court of New York affirming a judgment of that cpurt entered upon a verdict rendered by direction of the court.

The action was brought for an installment of rent due under a lease on which defendant was surety. The facts are stated in the opinion. At the trial, evidence offered by defendant to show the pondition of the premises as to alterations at the time possession was to be given, and to show an arrangement made between the lessees and lessors, at or about the time of the making of the lease, in reference to the time in which the alterations should be completed, was excluded; and defendant’s exceptions to such rulings are the exceptions mentioned in the opinion.

*S. F.*Kneeland, for appellant.

*George R.*Covington, for respondents.

*51Larremore, Ch. J.

On March 18th, 1887, the plaintiff leased, to the firm of Kantrowitz and Epstein the promises known as No. 45 West 14th Street in the city of New York, for the term of six years from May 1st, 1887, at the yearly rent of $6,000, payable in monthly installments in advance upon the first day of each and every month. The lease contained the usual covenants, and also a provision that possession of the premises would be given on May 1st, 1887, or sooner, if alterations thereto were completed. Attached to the lease was a memorandum signed by the parties providing for certain alterations in and upon the premises therein demised. The defendant, under his hand and seal, became individually responsible, as surety, for the payment of the rent reserved in such lease.

It appears from the evidence that the repairs contemplated were not finished on May 1st, 1887, whereupon the lessees offered payment of $500, for the first month’s rent of the premises, and demanded possession thereof, to which answer was made that the alterations were not yet finished. The rent was not paid according to the terms of the lease. The plaintiffs then brought suit against the defendant for its recovery, who contested the payment thereof on the ground that the premises in question had never been accepted by the lessees, and also that they had duly tendered the rent in dispute and demanded possession of the premises, which was refused. Upon the trial a verdict was directed for the plaintiffs for the amount claimed, and the judgment entered thereupon was affirmed in the court below, from which this appeal is taken.

The lessees were liable upon their covenant, and the surety was properly held responsible upon his individual obligation for the payment of the rent *(Jaffe*v. *Harteau,*56 N. Y. 398), as he had set up no claim for damages on account of a breach of the covenant *(Edgerton*v. *Page,*20 N. Y. 285). There was no provision in the lease fixing the time-when the alterations upon the premises were tobe commenced, and in view of the memorandum attached to the lease, it must be assumed that the lessees contracted with the understanding that the *52time fixed for giving possession of the premises—May 1st, 1887—was not imperative.

The alleged tender set up in the answer was not available as a defense *(Becker*v. Boom, 61 N. Y. 317). It was a tender made before suit, and the amount offered was not paid into court.

Nor do I think, upon the testimony offered, that there was any waiver by the plaintiffs, of their legal rights in the premises. The distinction between a right of action upon a covenant contained in a sealed instrument for the payment of rent, and that for use and occupation only, is no longer an open question.

The exceptions noted at fols. 41-42 and fols. 49-51 are without merit. There was no ambiguity in the lease, and parol evidence was inadmissible to enlarge its scope or terms.

The judgment appealed from should be affirmed, with costs.

Van Hoesen, J., concurred.

Judgment affirmed, with costs.