
    RENSSELAER R. MOORE, Respondent, v. JOHN McCARTHY, Appellant.
    
      Lease—extension of— surrender.
    
    This action was brought to recover rent, alleged to be due upon a sealed lease, ' whereby the defendant leased of the plaintiff certain premises for the term of three years from January 1,1869, with the privilege of three years more, after the termination of the first term. The defendant entered and occupied the premises for fifteen months; he then, having paid the rent to that date, left the premises, one Kinny being in possession with plaintiff’s knowledge. Kinny continued to occupy, paying rent to the plaintiff, till May 8,1872, when he left, delivering the key to the plaintiff, who accepted it and subsequently rented a portion of the premises. Held (1), that the holding over of Kinny did not constitute an election on the part of the defendant to extend the term; (2), that accepting the key and re-renting the premises was a surrender and termination of the lease, at least from the time of the re-renting, if not from the time of accepting the key.
    Appeal from a judgment in favor of the plaintiff, entered upon" the report of a referee.
    
      Churchill & Nutting, for the appellant.
    
      Waters & Sands, for the respondent.
   Opinion by

James, J.

Present — Learned, P. J., Boardman and James, JJ.

Judgment reversed and new trial ordered, costs to abide the event.  