The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-03-05

uR0x8ANx 10 LANDLORDS AND fXNANf5s And AL1O
10 suIufIEs FOE xnn.
MAaCH 3.-Dsmid o. Co~~r %. Mattheso Nc
Bvids.- This csss was argued few days ago before
Judge Mccarthy, and q this period Of the year viii
be rad with mnoh intersst BY all that class concern
Cd In the hiring Of tenenents or going security.
Mccarthy, Justce.-This was IN action brought
by the plaintiff against the defendant - surety o.
an agreement 70 let It appeared by the evidence
that the plaintiff leased the premises No 200 Mercer
street to one Samuel McHenry, for the term Of ono
year from tho LIST Of May, 1861, Ct rent Of $500,
payable quarterly In advance The lessee agreed to
pay the rent and also the Crotoa water rent and 70
quit and surrender the premises In q good ststs
ard condition as reasonable use and wear thsrs-
Of will permit, damages by the elements excepted
The defendant was surety upon this lease, and cove
nanted, in case Of default in the payment Of the
rent, or performance Of the covenants, to pay the
arrears Of rent and all damages that might arise In
consequence Of the non-performance Of the cove
nants IN the lease The plaintiff Claimed the whole
lance Of $25 on the third quarter, the Oroton water
rent $10 and also $500 damages for not keeping the
premises in repair, making his whole claim $4s6.
died in December 1851 that about the lst Of Febru
airy following, one Carew went to the plaintiff In
company with q brother Of McHenry, and proposed
to take the house for the balance of the year. and en-
Henry the brother, paid up all the back rent with
the exception Of SIS, and that the plaintiff agreed
with Carew that be Was to take possession Of the
house 0s the 81 the and T. the rent
nant, received portion Of the rent from him, and
collected some nom the other tenants, in tho whole
amounting to $780, The defendant now contends
lance Of surrender Of the old lease and substita
ton Of Carew - tenant, and that he as surety wal
thereby discharged nom all liability on his agree
10 xbSsr Ss g
The courts have always insisted upon very strict
compliance with the terms of an agreement, in order
to hold surety and have always guarded this right
settled that where the obligee does any act
to the injury Of the surety, or In any way varies
the terms Of the obligation, the surety Is discharged.
Ssee Rathbone Vs. Warren, 10 Johns, 5s7; Bangs vs..
the plaintiff, by agreeing with and accepting Oarew
as tenant, and receiving rent from him and from
other tenants, cancelled the former lease to Mcen
leased the surety from his obligation. It
tended by the counsel for the plaintiff that the act
Of O'Connor was intended as mere asked per.
mission to CArew TO occupy the premises, and that
and as ire paymaster Of McHenry: But even II this
were 30, the act itself, by operation Of law, cons-
tuted surrender Of the old lease and new letting
to Carew. This point was fully argued in recent
acts OF the parties in that case almost identical
with this excepting that they were then moro favor
able to the landlord for then the landlord refused to
discharge the first tenant, and gave his receipts to
the tenant in the name of the old, and the Jury
found that 1t the intent of the parties that the
first tenant should be held liable, and rendered
verdict for the landlord against the original tenant
Yet in that case the court held that - there
was no evidence that the new tenant went into
possession; either as the assignee or sufficient
Of the original lessee; "theIe was no prin-
eiple Of law or equity upon which the defendant
could be made responsible for her acts for default
The defendant was in no sense q party to the
agreement by which the new tenant went Into pos
session nor does 1t appear that she had any know.
ledge of its term or existence" The Court further
say that the new agreement Of letting Operated in
covenants in the lease, and they attach no impor-
lance to the terms Of the receipts FOR rent which the
plaintiff gave They only show that he wished to do
there is no pretence that the defendant had any
knowledge OF the letting to Carew, and il such
proceeding would discharge the original oblgor in
the lease, 1t certainly would operate much more
Bays " Despiaine, Sand. 8. 9. R. 81 The claim aim
against the defendant for non.payment OF rent.
therefore, cannot be sustained. The counsel for the
discharged from his liability for rent he sill nust
respond for the damages done to the properly
and for the Croton water rent. He showed that
be had expended for repairs on the house
But it appears to me, from . careful exami
nation of the testimony, that the premises were
not damaged more than reasonable use and ware
would permit in houses Of that class and rented out
to several families. The evidence OF Pnalen sup
ports this view OF the case. But even tie promises
had been damaged, is not the surety discharged
There is but one covenant on his part and that Ia
to pay the rent and the damages. It Is an entire
covenant, and canuot be divided II the obligee BY
his own act releases him from q portion OF his obi
gasion, he cannot hold him for the rent. II the
liability Of the surety Is discharged ct ALL the dis
charge extends to the whole, and he cannot be re-
leased in part and held In part This priacipie was
fully established In tho Of Leeds Vs. Dunn where
the surety guaranteed the payment Of certain pur-
chases to be made CD credit Of six months. Some
we've made ct four months and some at six mont ns'
credit The seller attempted to hold tho surety for
the sales made at six MONTHS but the Superior Court
held that the change made in the terms released the
has been recently affirmed By the Court Of Appeals.
(See Selden's notes Of cases In Court Of Appeals
No. s, p. 38) The same rule applies to the Croton
water rent Another question was argued before
me 1T great length. It appeared that the seals on
the instrument on which the action was founded
were not made with wax or waters, but were simply
pieces o. paper fastened to the instrument itself
WITH gum arabic, or some similar Substance, and
trument, spc that therefore It contained NO cove.
nants on which the defendant could be held. The
question a. to what constitutes seal appears have
been before courts several times aud the ruling
has been that . seal must be on wafer or wax. OF
some other tenacious substance capable Of receiving
enimpresion." (Bank Of Rochester w. Gray, Hill,
227; Andrews va Jerome, 4 Cow. 800; Kent's
Com. 453, Sd ed; Com and Hits notes to Phil on
Ev. l,277) Whether the substance that is put upon
the backs OF the new fashioned seals that our Sta
TONERS now prepare il ga tenacious substance capa-
BILE Of resolving an impression" is question Of con-
siderable importance to our conveyancers Ny views
of the other points In this case as above expressed
render 1t unnecessary for me to decide this question;
but II is certsiDly enc of sufficient importance to a
duce all careful practitioners to use the wafer 81
WAX in all sealed instruments Sould the question
be raista in such way a. 10 render It imperative
upon the courts to c.da it. ruling adverse to the
validity OF the ordinary paper seal wnen 1se ythout
wafer or wax, would have . most disastrous cNbcE
upon the rights Of parties that based upon deeds,
bonds, and other instruments that are seaiei n
that way.
Judgment must be entered for the defendant. VIII