
    Harris Lyons, Respondent, v. Julius Miller, Appellant.
    (City Court of New York—General Term,
    October, 1894.)
    Under an allegation of a surrender and acceptance of leased premises in a certain month, proof of surrender and acceptance in a previous month is inadmissible.
    Appeal from judgment in favor of the plaintiff.
    Action for rent.
    
      A. II. Berrich, for appellant.
    
      H. Joseph, for respondent.
   Fitzsimons, J.

The answer alleges that in the month of September, 1893, the defendant surrendered and the plaintiff accepted the demised premises. This allegation the defendant’s proof entirely failed to sustain.

Testimony tending to show an acceptance and surrender in August was properly excluded. The proof must follow the allegation; otherwise it is inadmissible; •

The judgment must be affirmed, with costs.

Newburger, J., concurs.

Judgment ‘affirmed, with costs.  