#### Mary A. Heydecker, Respondent, *v.*William Hoffman and Bernard F. Drakenfeld, Jr., the name “ Bernard ” Being Fictitious, the Defendant Drakenfeld, Jr., First Name Unknown to Plaintiff, Appellants.

(Supreme Court, Appellate Term,

February, 1912.)

Landlord and tenant — Creation and existence of relation — Leases and agreements in general.

Where a lease was given for a term of years at an annual rent of $5,000 payable in advance in equal monthly instalments, the guarantors of the rent up to and including the sum of $2,500, upon consenting to the cancellation of the lease in consideration of their release by the landlord from any further liability under the lease, remain liable for rent due prior to the cancellation of the lease.

Appeal by defendants from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, fifth district, rendered in favor of the plaintiff;

David Kornblueh, for appellants.

Edward Herrmann, for respondent.

*477Seabury, J.

The plaintiff sues to recover a balance alleged to be due from the defendants as guarantors of the obligation of Darre & Barany. On November 15, 1910, the plaintiff and Darre & Barany entered into a lease in writing under the terms of which the plaintiff leased the premises No. 2 West Ninetieth street, borough of Manhattan, city of New York, to Darre & Barany for the term of five years, at a rental of $5,000 a year payable in advance on the fifteenth day of each .month in instalments of $416.66. The defendants guaranteed the payment by Darre '& Barany of the rent of said premises “ up to and including the sum of $2,500.” On August 31, 1911, the plaintiff and Darre & Barany signed an agreement of release. That agreement provided that, in consideration of the plaintiff’s releasing Darre & Barany “ from any further liability under the said lease,” the said Darre & Barany consent to the cancellation of said lease.

The issue raised upon the trial relating to the defendants’ claim that they had paid $2,500 to the plaintiff under their agreement of guaranty was decided, upon conflicting testimony, in favor of the plaintiff. This issue presented merely a question of fact, and no sufficient reason appears for disturbing the conclusion reached upon it by the court below. The other question presented for our determination relates to the defendants’ claim that the- agreement of release between the plaintiff and Darre & Barany exonerated the defendants from further liability upon their guaranty. The cancellation agreement was executed and delivered on August 31, 1911. . At that time Darre & Barany were liable to the plaintiff for $416.66 .for rent which accrued and became due on July 15, 1911. While the cancellation agreement releasing Darre *&*Barany operated to discharge the principals from their obligation to pay rent for the balance of the unexpired term of the lease, it did not operate to release them from their obligation to pay rent which had accrued prior to that" time. Nor could such an agreement exonerate the'sureties off the principals from their liability to pay the rent which had accrued prior to the time of the discharge of their principals. In Kingsbury v. Williams, 53 Barb. 142, *478154, the court said: “The surrender of the lease and the release, of the tenant from liability for rent for the unexpired portion of the term did not affect the relations of the surety to the principal in respect to the rents previously accrued and then due and payable. The suggestion, that he may have relied on the tenant’s continuance in possession during the whole, term to enable him to pay the rent, is speculative. The surety might have insisted on that condition by an express stipulation to that effect, but he did not; and in the absence of such stipulation he must be deemed to have contracted in view of the settled rule of law that a surrender of the term by the lessee does not discharge him from any previous .liability for a breach of the covenants of the lease.’’

The judgment rendered includes sixty dollars and ninety cents more than the amount due.

The judgment is modified by deducting the sum of sixty dollars and ninety cents, and, as modified, is affirmed, without costs to either party.

G-eeabd and Hotchkiss, JJ., concur.

Judgment modified, and, as modified, affirmed, without costs.