
    WEIL et al. v. WITTE et al.
    (Supreme Court, Appellate Term.
    November 10, 1904.)
    1. Lease—Surrender—Evidence.
    A surrender of a lease is not shown by the fact that W., one of the • lessees, assigned his interest in the lease to his co-lessee and another, and that the landlord commenced summary proceedings against such assignees, he having discontinued them because W. was not made a party, and then sued the lessees for rent.
    Appeal from Municipal Court, Borough of Manhattan, Seventh District.
    Action by Jonas Weil and another against Christopher H. Witte and another. From a for defendants
    Affirmed.
    Argued before FREEDMAN, P. J., and BISCHOFF and FITZGERALD, JJ. '
    W. T. Matthies, for appellants.
    M. J. Katz, for respondents.
   PER CURIAM.

Hardly one of the statements set forth in the appellants’ brief are borne out by a perusal of the record. The action was brought to recover five months’ rent due under a lease made between plaintiffs’ assignor and the defendants. The execution of the lease and the nonpayment of the rent claimed were admitted. Defendant sought to show that the lease had been surrendered May 1, 1903. He first offered in evidence what he claimed was an assignment of the defendant Witte’s interest in the lease to his codefendant Roggenkamp and one Munn. This had no materiality, and did not relieve Witte from liability under his lease, and was subsequently stricken out. He then offered in evidence what he states in his brief “was a record in summary proceedings, which recited that petitioners [plaintiffs here] and respondents Roggenkamp and Munn, the assignees of defendant Witte, made a lease with the petitioners, dated May 1,1903, of these same premises, and that there was due from them rent from December 1, 1903, to February 1, 1904.” What the defendant did offer appears on the record as follows:

“I offer in evidence petition issued to the Municipal Court of the city of New York, borough of the Bronx, Second District, against August Roggenkamp and one Frank C. Munn, filed January 26, 1904, and precept issued then, with the indorsement of judgment on the precept, and showing the issuing of warrant on January 20, 1904; and here is the warrant.”

It was not claimed or shown that the plaintiffs here were the petitioners in the summary proceedings, and upon attempting to prove such to be the case it was shown that those proceedings were discontinued because the defendant Witte was not made a party, and upon the same day of the discontinuance of the summary proceedings this action was instituted. That constituted all of the material testimony offered by the defendant, whereupon judgment was given for the plaintiffs, which must be sustained.

Judgment affirmed, with costs.  