
    Isaac P. Conklin, Resp’t, v. Hiram Cooper, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887.)
    
    1. Landlord and tenant—Liability on tenant eor property leased.
    A tenant under a .lease is not responsible for losses of property by natural causes. To establish the tenant’s fault, the burden of proof rests upon the landlord.
    2. Same—Sub-lease does not discharge a surety.
    Where a person becomes a surety for the tenant under a lease, a sub-' lease by the tenant will not discharge the surety from liability.
    Appeal from a judgment rendered upon the decision of Mr. Justice Barnard upon the trial of this action before him without a jury.
    March 8, 1819, plaintiff leased to Hiram Carroll his farm for one year from April 1, 1819, with the privilege of five years at option of said Carroll, on giving written notice.
    Defendant was surety for Hiram Carroll on said lease.
    Hiram Carroll took possession of the farm under the lease, and worked it until November 8, 1881, when plaintiff sued him for a settlement, and decision was rendered therein March 15, 1883.
    This action is against the surety, Hiram Cooper, for proceeds of farm, stock, implements, not accounted for by Hiram Carroll, claiming fifteen hundred dollars ($1,500).
    Defendant’s answer is, that plaintiff, in the fall of 1881 (and soon after the suit was commenced by plaintiff against Hiram Carroll above mentioned), agreed to give William Carroll (who is a brother of Hiram) fifty dollars if he would get rid of Hiram, and he, William, to take the farm and run it.
    That William did buy off Hiram, and run the farm from that time on.
    Also, that either Hiram or William have rendered an account of all moneys that they have received.
    
      A. M. & G. Card, for def’t; Henry M. Taylor, for pl’ff.
   Pratt, J.

We do not think the evidence sustains the finding that the tenant was responsible for the entire loss-of four cows. If they died from natural causes, without the tenant’s fault, the loss would fall upon the landlord. The burden of proof is upon the plaintiff. We do not think he meets the requirement.

The judgment should be modified by striking out sixty dollars allowed as value of two lost cows.

In other respects we do. not feel called upon to interfere with the judgment. The testimony was very conflicting and the trial judge saw the witnesses. The testimony of the numerous witnesses that plaintiff offered fifty dollars-to William. Carroll, to take his brother’s place, is as consistent with a project of a sub-lease as with any other theory.

A sub-lease would not discharge the surety.

As modified by striking out the sixty dollars allowed for two of the cows, the judgment should be affirmed, without costs of appeal.

Dykman, J., concurs; Barnard, P. J., not sitting.  