
    John T. Allen, Plaintiff and Respondent, v. Daniel Devlin, Defendant and Appellant.
    1. A parol lease of lands for a term exceeding one year is not valid, nor can a term exceeding one year be surrendered by parol. But a parol agreement, upon sufficient consideration, duly performed on the part of the tenant or his surety, for the surrender of the last year [of the term] is valid, and evidence of such an agreement is admissible as a defense in an action brought to recover upon the lease for the rent of the said last year of the term, when it appears that the tenant did not occupy during such last year.
    2. The statute of the State of New York, (2 R. S., p. 135, § 6,) which declares that no estate or interest in land other than leases for a term not exceeding one year shall be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance, in writing, subscribed, &c., does not render invalid an agreement by a lessee for a term of years with his lessor, that the premises shall be surrendered on the first day of May of the last year of the term.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, December 15th, 1859;
    decided, January 7th, 1860.
    
      This action was brought against the defendant as surety for the payment of rent reserved in a lease, for the term of three years, given by the plaintiff to one Meadore. The plaintiff claimed to recover for rent which, according to the terms of the lease, was payable on the 1st day of August of the last year of the term for the quarter ending on that day, i. e., from the 1st of May to the 1st of August.
    The defense was, that in the preceding month of January, {i. e., in the second year.of the term,) the plaintiff agreed with the defendant, with the concurrence and authority of the lessee and the tenants in possession, that, in consideration of one hundred dollars to be paid by the defendant to the plaintiff, the lease should be canceled, and the premises and term therein be surrendered on the first day of May then next, for the residue unexpired of such term of the lease, that being one year only; and that the defendant tendered to the plaintiff the said sum of one hundred dollars, and he and the tenants in possession left the said premises on or before such first day of May, and placed the keys and the control of the premises at the disposal of the plaintiff) in full performance, on their part, of the said agreement. The evidence on the question whether the plaintiff accepted the keys was conflicting.
    The action was referred, by consent, to the Hon. William Kent, as sole Referee, before whom the same was tried, on the 30th of Kovember, 1858.
    The Referee decided the cause in favor of the plaintiff, and ordered judgment for the amount of rent due according to the terms of the lease, with interest and costs, amounting to $636.25.
    In giving his decision he stated, as one of his conclusions of law, “that the said lease being under seal for a term exceeding one year could not be surrendered by parol, and could only be surrendered by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating the same, or by. his lawful agent thereunto authorized in writing.” To this conclusion of law, the defendant’s counsel excepted.
    It was quite apparent that the finding of the Referee upon the issues, notwithstanding the evidence of the parol agreement and tender, &c., above referred to, proceeded upon his view of the law, as stated in the conclusion above stated.
    
      From the judgment, entered in favor of the plaintiff, the defendant appealed to the general term.
    
      John E. Develin, for the defendant (appellant).
    I. This was a valid surrender by agreement.
    1. Surrenders are of two lands — surrender by agreement or deed, and surrender in law — and no particular words are necessary to constitute a surrender by agreement. All that is required is that such words should be used as evidenced an intention upon the part of the tenant of the estate for years to give up, and the owner of the reversion to accept, the lesser estate. (2 Shep. Touchstone, 306, 307, Lond. ed. of 1808.) The words of the agreement here plainly indicate an intention to surrender and accept; and if these words had been committed to writing, no question would have arisen on the agreement. Inasmuch, however, as the agreement rested in parol, the Referee decided it to be invalid. In this the appellant claims the Referee erred.
    2. “ Anything that may be granted without writing, may be surrendered by words without writing.” (Shep. Touchstone, 307.) By the Revised Statutes, a lease for a year of lands will be valid, although made by parol and to commence in futuro. (2 R. S., 135, [m. p.;] Young v. Dake, 1 Seld., 463.) And a surrender of a term of years may be made to take effect in futuro. (Allen v. Jaquish, 21 Wend., 628.) The words of the statute are, “No estate or interest inlands, other than leases for a term not exceeding one year, * * * * shall hereafter be created, granted, assigned, surrendered, or declared,” except in writing, &c. In this case, although the lease was originally for three years, yet, at the time when the agreement of surrender was to take effect, there was but one year of the original term unexpired, and the lease was therefore but for one year, and it and the residue of the term could, independently of and under the statute, be surrendered by parol. (Smith v. Niver, 2 Barb. S. C., 180.)
    II. The agreement was also a surrender in law. It was on the part of .the landlord, an agreement, in consideration of $100, to take the premises from his tenant, and upon the part of the tenant to give the $100 to the landlord, and the premises from 1st May, 1858, to 1st May, 1859. This agreement amounted to a redemise of the premises to the landlord for the remainder of the term, and such redemise is a surrender in law, even though the agreement be by parol, and the original lease be under seal. (Woodfall’s Landlord and Tenant, 151, [Lond. ed., of 1802,] 186, [Lond. ed. of 1804;] Leonard v. Patterson, 3 Blackf., 356, 357; Allen v. Jaquish, 21 Wend., 628.)
    III. There was another surrender in law; the plaintiff having accepted the keys, and his agent having, with his approbation, gone into possession of the premises.
    1. The delivery and acceptance of the keys of a house, with an intention sursum reddendi, is a surrender in law. (4 Kent Com., 107, note c.; Dodd v. Acklom, 6 Mann. & Grang., 672; Wilkes, &c., v. Ferris, 5 John., 335; Whitehead v. Clifford, 5 Taunt, 518; Com. Law R., vol. 46, p. 672.)
    IY. The judgment should be reversed, and a new trial granted.
    
      Frederick A. Lane, for the plaintiff (respondent).
    I. The lease sought to be surrendered was a lease for a term exceeding one year, and therefore could not be surrendered unless, by act or operation of law, or by a deed or conveyance in writing subscribed by the party creating the same, or by his lawful agent, thereunto authorized by writing. (2 R. S., part II., ch. 7, tit. I., § 6.)
    II. This lease created an estate in the lands for the term of three years, and the estate could not be separated in the way defendant contends.
    1. The common sense construction of the statute is, that the estate, granted by a lease of a term not exceeding one year, might be surrendered by parol, but that where a lease was made for a term of more than one year, being in writing, should only be surrendered by writing. If this were not so, then the whole statute in reference to the surrender of leases for a term of years, could be made a nullity. A. leases lands to B. for a term of years, and at the expiration of the second year he agrees to surrender the lease for the third year, and at the same time agrees to surrender for the fourth year, and so on; each time agreeing to surrender only the estate of one year.
    III. The testimony of defendant Devlin and of Miss Hope, as tó the conversation at Devlin’s office, ought not to have been received by the Referee, and should be entirely laid aside; for supposing it to be true, yet it would not operate to defeat this action. Consent is not sufficient; it must be followed by actual and continued change of possession. (Nicholls v. Atherstone, 11 Loud. Jur., 778; Randall v. Rich, 11 Mass. R., 494; Ogden v. Sanderson, 3 E. D. Smith, 166; Lyon v. Reed, 8 Lond. Jur., 762; Dodd v. Acklom, 6 Mann. & Grang., 673, 679.)
    IV. In order to constitute the surrender of a particular estate by act and operation of law, the owner of the particular estate must be a party to some act, the validity of which he is by law afterwards estopped from disputing, and which would not be valid if his particular estate had continued to exist (Lyon v. Reed, supra.)
    
    1. The acts which operate by way of estoppel are such as, in contemplation of law, are acts of notoriety; as formal and solemn as the execution of a deed, or livery, entry and acceptance of an estate; the concurrence of the parties to which there could, from that notoriety, be no difficulty in ascertaining. (Parsons on Contracts, vol. 1, p. 428; Taylor’s Landlord and Tenant, § 512, et passim; Lyon v. Reed, supra, and 13 Mees. & Wels., 309; Lawrence v. Brown, 1 Seld., 404.)
    V. There cannot be a surrender to operate in futuro, though there may be a lease to commence in futuro. (Schieffelin v. Carpenter, 15 Wend., 400; Doe, dem. Murrell, v. Milward, 3 Mees. & Welsh., 328; Roe, dem. Berkley, v. York, 6 East., 86; Taylor’s Landlord and Tenant, § 513.)
    1. Hence, the argument derived from Young v. Dake, (1 Seld., 463,) and from Shep. Touchstone, (vol. 2, p. 307,) cannot apply. This is not a lease by parol, and of course may not be surrendered by parol. And the same may be said of the cases in 21 Wend., 628; (1 Sand. S. C. R., 5; and 2 Barb., 180;) that the principles are entirely different from the case now under argument.
    VI. The animus sursum reddendi must be apparent in both parties. Hence, the delivery of the keys to Allen (supposing Mr. Devlin’s testimony to be correct) would not operate as a surrender by act or operation of law. (Townsend v. Albus, 3 E. D. Smith, 560.)
    1. Mr. Allen’s intention is evidenced by his non-acceptance of the gold—by Mr. Devlin’s remark: “I told him he could do as he pleased with them,”—by Mr. Allen’s remark “ that he should not repair the house under that lease,”—from his refusing to pay for the advertising the houses to let.
    Also from his never giving Bisco, his confidential agent, any authority to rent the houses or to repair.
    VII. The decision of the Referee was correct, and should be confirmed.
   By the Court—Hoffman, J.

The lease was dated the 4th of March, 1856, for the term of three years from the 1st of May then next. It would expire, then, on the 1st of May, 1859. The guaranty of the defendant is of the same date as the lease.

The action is for the recovery of the rent due the 1st of August, 1858, and some arrears of Croton water-tax agreed to be paid by the lessee.

It is alleged, in defense to the action, that, in the month of January, 1858, the plaintiff agreed with the defendant that, on the 1st of May, 1858, he would cancel, determine and put an end to the lease, provided the defendant would, on or before the 1st of May, pay the plaintiff $100 as a consideration for such cancelment.

This agreement is by parol. The point is, can testimony of such a parol contract be admitted ?

The provision of the statute applicable to the subject is as follows: “ Fo estate or interest in lands, other than leases for a term not exceeding one year, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent, thereunto authorized by writing.” (2 R. S., p. 134, § 6.)

In Young v. Dake, (1 Seld., 463,) an agreement was made on the 4th of April, 1848, to lease a store for one year from the 1st of April, 1848. On the 11th of September, 1848, a further parol agreement was made that Dake should occupy the store for another year, commencing April 1, 1849. The proceeding was to remove Dake from possession.

It was held that a lease for a term not exceeding one year, and a contract for a lease or letting for a period not longer than qne year, are valid, though made by parol.

There was nothing which would seem to attach any qualification or condition to a parol lease, or contract of letting, for a year, or that it shall commence immediately, and cannot be made to commence at some future day.

“The time between the making of the lease and its commencement in possession, is no part of the term granted by it. The term is that period which is granted for the lessee or tenant to occupy and have possession of the premises. When, therefore, our statute speaks of a lease for a term not exceeding one year, and of a contract for a lease for a period not longer than one year, (§ 8,) it has reference to the time for the tenant to possess and occupy the premises, and does not include any previous or intermediate time. A lease, therefore, for the term of one year-may as well be made to commence at a future day, as at the day of making it.”

It must, I think, be conceded that, if a lease can be entered into by parol, three months before possession is to be given under it, and such possession is then to be but for a year, then a contract to surrender a lease, when the surrender is only to take effect for one year of occupation, may be made by parol.

Hence, the Referee was bound to have passed upon the evidence, and stated his conclusion of fact whether the landlord did accept the surrender alleged. The point of most importance relates to the delivery of the keys on the 30th of April. As to this, there is some contradiction of evidence.

It is true that the Referee finds that the lease has not been surrendered. But it is obviously so found mainly on his view of the rule of law not allowing of a parol surrender or agreement to receive it in the present case; and hence he has not considered and passed upon the evidence of the facts tending to show a surrender and acceptance.

There must be a new trial, and before the same Referee, unless a jury is applied for.

New trial ordered; costs to abide the event. 
      
       The plaintiff appealed from this order to the Court of Appeals—his notice of appeal containing an assent that, if the order was affirmed, judgment absolute should be rendered against him. That Court, at its June Term in 1861, affirmed the order, and gave judgment absolute for the defendant.
     