#### Charles Harft, Appellant, *against*Walter Tonnelli *et*al., Respondents.

(Decided April 7th, 1890.)

On the day defendant was to take possession of plaintiff’s premises under a written lease for a term of years, plaintiff destroyed the lease and refused possession, but subsequently, on the same day, said he had changed his mind, and he let defendant into possession, saying he would prepare a new lease similar to the other. Several months thereafter he tendered a lease unlike the one destroyed, which defendant refused to sign, and no other lease was ever made. *Held,*that plaintiff, in an action under the latter lease, could not recover upon the lease destroyed for the rent of any part of the term after the premises were abandoned by defendant.

Appeal from a judgment of the District Court in the City of New York for the Third Judicial District. .

The facts are stated in the opinion.

*Henry Welile,*for appellant.

*J. M. Tonnelli,*for respondents.

Larremore, Ch. J.

This action was brought to recover rent due for the month of November, 1888, for premises No. 18 Clinton Place in the City of New York, under an alleged verbal lease made May 1st, 1888, for the term of one year. Defendants denied that such lease was ever made, and also claimed a surrender of the premises by the defendants and acceptance by the plaintiff. These were the main issues litigated in the court below and were purely questions of fact upon the evidence offered.

It appears by the testimony that in November, 1887, the parties all executed a written lease whereby the plaintiff-leased the premises in question to the defendants for two years and five months from December 1st, 1887 ; that at the time of the execution of the lease defendants tendered one month’s rent, which plaintiff refused to accept because they *116did not tender at the same time the price of certain property. He told them to wait until December 1st. Upon that day the defendants called to pay the rent for December and also for the alleged property, when plaintiff took the lease from his desk and destroyed it, telling defendants he would not let them have the premises.' Afterwards, on the same day, he told defendants he had changed his mind and would let them have the premises, and would prepare a new lease with the same conditions as the one destroj'ed, whereupon defendants paid one month’s rent and went into possession. Some time thereafter the plaintiff presented a new lease unlike the one destroyed,, which defendants refused to sign because not according to» the agreement, and no second lease was ever-executed nor any other lease ever made. It seems to be quite evident that defendants continued in possession of the premises with the expectation of receiving the same lease that they had previously signed for two years and five months which lease as above stated was destroyed. Plaintiff based his action upon the lease or agreement made May 1st, 1888, and cannot now claim to recover upon any other. He failed to prove such a contract by a preponderance of evidence. It is unnecessary to refer to the testimony, which is very voluminous, as it fully appears on the return. If the surrender and acceptance was duly made, and there is some testimony to that effect, the judgment rendered should not be disturbed on appeal, but should be affirmed, with costs.

Bischoff, J., concurred.

Judgment affirmed, with costs.