
    James B. Brady v. Julius Peiper.
    In an action against a surety upon a lease, it is not competent for the defendant to show a- verbal agreement, cotemporaneous with the execution of the lease, that it might be surrendered at tire will of the tenant, and that such surrender should operate as a discharge of the surety, and a remission of throe months’ prior rent.
    But it seems, that a surrender by the tenant and an acceptance by the landlodlfof the leased premises, would operate as a release to the surety, in respect to all subsequently accruing rent.
    Appeal by the defendant from a judgment of the Marine Court. This action was brought against the defendant as surety upon a lease. Both the lease and the guaranty were in writing, the lease being for two j’ears. Upon the tidal, the defendant offered to prove, that the plaintiff agreed verbally, at the time of tbe execution of the lease and guaranty, that the tenant might surrender the premises whenever he should wish to do so; that such surrender should discharge the surety, and that the plaintiff should remit three months' rent previous to such surrender. The evidence was excluded by tbe court, and, there being no other evidence offered, judgment was given for tbe plaintiff.
    
      Latvian and Lamed, for tbe appellant.
    The offer made constitutes a complete defence to this action. It was an independent verbal agreement. It does not alter tbe contract on which this action was brought, but only provides a method by which, in a certain contingency, it should be discharged. 8 Cowen & Hill’s Notes, 1461; Bradley v. Bentley, 8 Yermont R. 248 ; Gross-man v. Fuller, 17 Pick. 171, 174; llain v. Kalbach, 14 Serg. & Rawle, 159 ; Balierman v. Pierce, 3 Hill, 171.
    
      
      Frederick Smyth, for tbe respondent.
   Brady, J.

Tbe offer of tbe defendant in tbis action was an. offer to show, by tbe witness, that tbe lease, though in terms for a period of two years, was, by a verbal assurance on tbe part of tbe lessor and plaintiff, a lease at tbe will of tbe tenant, to be surrendered by him at any time, and such surrender was to operate as a discharge of tbe defendant, who was his surety, and of bis own covenants. Tbe justice was right in excluding tbe evidence. It operated tp change tbe character and effect of tbe covenants contained in the lease, by a prior parol agreement, and . was not admissible on any principle of evidence. 1 Greenleaf, 360, § 275, and sequel; Cleves v. Willoughby, 7 Hill, 83 ; Speckels v. Sax, 1 E. D. Smith, 253. If tbe offer bad been to show tbe surrender and tbe acceptance of tbe premises by tbe landlord, as a bar to subsequently accruing rent, it would have been a good defence, and would have operated as a release to tenant and surety.

Judgment affirmed.  