
    HYMAN POMERANTZ, PLAINTIFF, v. PAUL J. DUNN, DEFENDANT.
    Submitted October term, 1930
    Decided April 16, 1931.
    Before Justices Case, Daly and Donees.
    For the plaintiff, Greenberg & Greenberg.
    
    For the defendant, Wright, VanderBurgh & McCarthy.
    
   Pee Cebiam.

The action is for rent under a lease. The court below found that there had been a surrender of the lease by the tenant and an acceptance of the surrender by the landlord. The judgment, in effect, was for the defendant. The landlord appeals. The case comes up on stipulated facts.

It is clear from the testimony of the landlord himself that he was, prior to the vacating of the premises, in negotiation with the state highway commission for the sale to the latter of all or part of the premises under lease; that the landlord and the tenant together visited the representative of the state highway commission with that object in view; that the landlord had conferred with the tenant in connection with the proposed vacating of the premises by the tenant to assist in acquisition by the highway commission, and that the landlord had received a communication in writing from the attorney of the defendant with respect to such negotiations. It appears by other testimony, although denied by the landlord, that the tenant delivered to, and the plaintiff accepted, the key to the premises with the oral agreement that the sum of $185, theretofore in the hands of the landlord as a deposit, was to be applied to rental payment, and that the tenant should be relieved of all further obligation under the lease.

The foregoing and other testimony leads us to conclude that the finding of fact by the court below was support in the testimony. When the minds of the parties to a lease cofieur in the common intent of relinquishing the relation of landlord and tenant, and execute this intent by acts which are tantamount to a stipulation to put an end thereto, there at once arises a surrender by act and operation of law. Meeker v. Spalsbury, 66 N. J. L. 60.

The judgment below is affirmed, with costs.  