
    Leopold Kahn, Respondent, v. Leopold S. Simons, Appellant.
    (Supreme Court, Appellate Term,
    January, 1899.)
    Lease — A surrender does not release the tenant from a liability which has accrued.
    Where a landlord informs a tenant that he may move at any time and be released from the rent, and he surrenders on or about April 1st, the last month of the term, he is not thereby relieved from liability for the rent of that month, becoming due on the first day thereof.
    Appeal from a judgment of the Eleventh Municipal Court, borough of Manhattan, in favor of the plaintiff.
    William Klingenstein, for appellant.
    Myers, Goldsmith & Bronner, for respondent.
   Gildersleeve, J.

The action is for rent. The facts are undisputed. Plaintiff, by a lease in writing, let to the defendant a flat, or apartment, for the term of thirteen months, from April 1, 1897, to May 1, 1898, at the rental of $50 a month, payable in advance on the first day of each and every month.' The defendant failed to pay the $50 due on April 1, 1898, and moved out of the premises on that day. On the trial, the only witness called was the defendant. The plaintiff introduced the lease in evidence, and then asked defendant if he had paid the rent due on April 1, 1898, to which question the défendant replied that he had not. Plaintiff thereupon rested. The defendant was then made his own witness, and testified as follows, viz.: “ Q. Why didn’t you pay the rent for the month of April, 1898? A. Mir. Kahn told me any time I wanted to move, he would release me. Q. When did he tell you? A. In December and January. For this reason I moved on the 1st of April, and surrendered to Mr. Kahn the keys, and he accepted them. Q. What time in April? A. The first part, at 12 o’clock.” Defendant then proceeded to give some rather indefinite testimony of having visited the premises, on or about the 17th of April, and finding one Pfeifer in possession; but the evidence on this point and as to the acceptance of the surrender of the premises is somewhat meagre. Upon this testimony, judgment was given fox the plaintiff.

The rent became due and owing on the 1st day of April, and there is no evidence that would warrant a finding of any abrogation of plaintiff’s right thereto. On or about that day, the defendant moved out and surrendered the keys to the plaintiff, who accepted them, and later on in the same month another person, apparently, was put into possession of the premises. This is evidence tending to show a surrender and acceptance, and while, under this state of facts, the defendant might have been released from any liability for rent subsequently accruing under the lease, had there been any (see Underhill v. Collins, 132 N. Y. 271), still he was not released from any liability that had already accrued, previous to the surrender of the premises. See Cheesebrough v. Lieber, 18.Misc. Rep. 459; McGregor v. Board of Education, 107 N. Y. 517; Conklin v. White, 17 Abb. N. C. 316.

The authorities cited by the appellant refer to cases of holdover, and do not apply to the case at bar.

The judgment should'be affirmed, with costs.

Beekmau, P. J., and Giegebich, J., concur.

Judgment affirmed, with costs.  