#### D. Willis James, Appellant, *v.*William R. Coe, Respondent.

(City Court of New York, General Term,

May, 1900.)

Tease — Surrender by reletting.

Where a landlord, with the consent of his tenant, relets the demised premises for the remainder of the term, there is a surrender by operation of law which precludes the landlord from recovering subsequent rent from the original tenant upon the default of the new tenant.

Appeal from a judgment, in favor of the defendant, entered upon a dismissal of the complaint by direction of the court.

*654Greene & Stotesbury (Louis W. Stotesbury, of counsel), for appellant.

Cowen, Wing, Putnam & Burlingham (Everett Masten, of counsel), for respondent.

ScHtroHMAN, J.

The complaint sets up a cause of action for two months’ rent. The answer pleads the defense of surrender by operation of law. The proofs at the trial show that on September-1, 1898, the plaintiff, as landlord, and the defendant, as tenant, entered into a written lease of an apartment on the first floor of “ The Curtiss,” ¡No. 176 West Eighty-seventh street, in the city of ¡¡Slew York, for the term of one year from October 1, 1898, to the 1st day of October, 1899, at a yearly rent, of $660, payable in equal monthly payments of $55 each, in advance, on the first day of each, month during the term. The defendant entered into possession of" the premises described in the lease. ¡No rent was paid for the months of June and July, 1899. The only evidence offered on behalf of the defendant was a lease of the same premises, dated on February 24,1899, to one Weimer, with two sureties, to wit: W. R. Coe, the defendant, and one Daniel C. Watts, for a period covering-the then unexpired term of the lease to the defendant. It was admitted at the trial “that the tenant Weimer mentioned in said lease, upon its execution, went into possession of the preipises described therein, and retained such possession down to the 1st of June,. 1899, paying the rent until the June rent became due, which was not paid by him, and the defendant did not pay any rent for the period for which this suit is brought.” The defendant rested his case on the legal effect of the “ reletting.” The court held that the-execution of the new lease, upon which the defendant became a. surety, was inconsistent with the relation of landlord and tenant upon the original lease, and dismissed the complaint. The lease to the defendant was not canceled. The giving of the lease by the-plaintiff to Weimer, of the identical flat demised by plaintiff by the prior lease to the defendant Coe, for the unexpired term provided' for in the Coe lease, at the same rental, with the defendant Coe and one Watte as sureties thereon,' clearly established the intention of" the parties, landlord and tenant, that the leasehold estate created-by the Coe lease was yielded up to and accepted by the landlord (the plaintiff), who created another leasehold estate, by the Weimer *655lease, in its place with, the consent of the termor. Thus, a surrender *by*operation of law is established. Coe v. Hobby, 72 N. Y. 141, 145, 146.

Judgment appealed from affirmed, with costs.

Fitzsimons, Ch. J., concurs.

Judgment affirmed, with costs.