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

(Supreme Court, Appellate Term.

November, 1900.)

Landlord and tenant — Landlord may show that a new lease, alleged as a surrender, was, in fact, a reletting for account of the tenant.

In an action for rent under a written lease, the tenant pleaded a surrender before the rent accrued and, in support of it, relied upon a new lease of the premises, which the landlord had given to a third party for the balance of the same unexpired term for which the landlord was demanding rent, and for whose performance he had taken a guaranty.

Held, that the landlord might show that the reletting was done under a clause of the original lease providing “that, in case of the default of the tenant, the landlord might relet the same for his account.

That such evidence did not tend to vary or contradict the second lease or its guaranty.

James v. Coe, 31 Misc. Rep. 653, reversed.

Appeal from a judgment of the General Term of the City Court of the city of New York in favor of the defendant. Action for rent under a written lease.

*675Greene & Stotesbury, for appellant.

Cowen, Wing, Putnam *&*Burlingham, for respondent.

*Per Curiam.*

We think that it was error for the trial justice to exclude the letter written by the defendant to the plaintiff’s agents as well as the conversations between said agents and the defendant, which the appellant’s counsel sought to elicit on the trial. The action was brought for the recovery of rent under a written lease. The defense was that, prior to the date when said rent is alleged to have accrued, there was a surrender of the term by the tenant, which was accepted by the plaintiff. The defendant upon the trial offered evidence of such surrender, relying upon a new lease made by the plaintiff to a third party, one Weimar, for. the balance of the unexpired term of the lease upon which suit is brought, and also upon the ordinary guaranty of such lease which was executed by the defendant and another party, who thus became apparently cosureties of the performance, of the second lease, by Weimar. It was for the purpose of rebutting any inference adverse to him which might arise from these facts that the plaintiff endeavored to show what the agreement between the parties, which culminated in the giving of these papers, actually embraced. The plaintiff’s contention is that the second lease was made pursuant to a certain stipulation contained in the first lease to the effect that, in case of any default on the part of the defendant, or if the premises should become vacant during the term of the lease, he, as landlord, might resume possession of the premises and relet the same for the remainder of the term, at the best rent that he could obtain, for account of the tenant. The ground upon which the ruling of the court below was based was that the matters sought to be brought out by this line of examination were in the nature of preliminary negotiations between the parties, which could not be proven for the purpose of in any way affecting or controlling what is stated to be the written agreement between them. What is claimed to be such written agreement is the second lease made between the plaintiff and Weimar and the contract of suretyship attached thereto made between the plaintiff on the one hand and the defendant and his so-called cosurety on the other. We do not think that this claim is a sound one. It is not disputed by the plaintiff that these papers were executed, nor *676does he seek to vary the terms of either of these documents. What he did desire to show was what the agreement really was which led to the execution of these papers; that the surrender of the original lease was not contemplated, and that the papers above mentioned were executed and delivered in pursuance of the clause in the first lease providing for reletting on account of the tenant. This, we think, he should have Been permitted to do. The judgment must, therefore, be reversed.

Present: Beekman, P. J.; Giegerich and O’Gorman, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.