
    Learned vs. Ryder.
    Although It is now well settled that where the character of the transaction depends upon the intent,of a party to a contract, it is competent, when that party is a witness, to inquire of him what his intention was, the rule does not apply to a case where the question is not one of intent, but whether the witness was defrauded, by being induced to execute a lease, as surety for the tenant, for a term of two years, instead of one, as he supposed it to be.
    In such a case,, after the witness has testified that he agreed to be, surety only for one year, it is improper to ask him whether he would have signed as surety if he had known that by the lease, as drawn, he would become surety for two years.
    Where a defendant, in action for rent, set up as a defence, a surrender of the premises, and acceptance by the plaintiff, and the evidence showed a surrender on the 30th of November; that the cause of action for that quarter accrued on the 1st, and the action was commenced on the 6th, of the same . month; Sold that there having been no surrender before the suit was commenced, that defense was not admissible, under the answer.
    IN" October, 1865, Eliza J. Howland agreed to lease of the plaintiff, No. 200 Madison avenue, in the city of New York, furnished, to be used as a boarding house for one year, at $10,000 per annum, payable quarterly in advance, to commence November 1, 1865; and the defendant agreed with her and- the plaintiff to be security for said rent for said one year. This agreement was to be reduced to writing for execution by the parties, by the plaintiff and he had the same done, and presented the papers to the parties separately, by his agent, Thomas H. Learned. On presenting the lease to Miss Howland, it proved to be for two years instead of one. She objected to signing the same, as appears from the testimony, for the reason that the lease was to be for one year instead of two, and the defendant was to be security for 'only one year; but ..on the said agent stating that the plaintiff would correct the lease and make it all right, Miss Howland did sign the same. That said agent then went to the defendant and presented a counterpart of the lease, or undertaking on his part, and asked him to sign it, when the defendant said: “ I suppose this is all right, and the lease is for one year, with the privilege of two. I am willing to be responsible for Miss Howland for one year.” The agent replied, the paper he presented the defendant to sign, was an instrument by which he, the defendant, became security for one year for said rent, and thereupon the defendant, without reading‘it, signed the same, supposing it was an agreement to be such security for one year only. The defendant first learned he had signed a paper becoming security for two years, when this action was commenced. It was claimed by the defendant, that the plaintiff, at the time he leased the house to Miss Howland, represented the same to be in good repair as to house and furniture, &c., and suitable, in all respects, for a first-class boarding house. The defendant claimed that the premises proved to be very much out of repair; and the roof, after' Miss Howland had occupied the premises six months, gave out, and leaked so badly that the upper floor of the house could not be used at all, and the leased property became and was untenantable and useless for a boarding house or any other purpose. The plaintiff was called upon to fix the roof and put the house in repair, in July, 1866, and promised, but neglected so to do ; and on the 30th day of Uovember, 1866, Miss Howland delivered the keys of the house to the plaintift* and surrendered the premises, and the defendant claimed that thereupon the lease became void. The plaintiff commenced this action to recover two quarters’ rent, one due, by the terms of the lease, August 1, 1866, and the other, November 1, 1866, and asked for judgment for $5000, and interest on $2500 thereof, from August 1, 1866, and on the balance, from November 1, 1866.
    The defendant, in his ¿nswer, alleged, among other things, that the agreement made by Miss Howland was for a hiring of the premises for one year, with the privilege of keeping the same for the second year, at her option, on the same terms. That the plaintiff put, or caused to be put, said lease and agreement in Writing, as he pretended, and brought the same, by himself or his agent, to said Eliza, when she found said lease was for two years instead of one, with the privilege of another. That thereupon said Eliza refused and declined to sign the same, -on the ground that the same was incorrect, and not according to agreement; and that thereupon the plaintiff, or his said agent, with the intent of deceiving and defrauding the said Eliza, fraudulently and falsely represented to her that said lease should, without delay, be changed to a lease for one year, with a privilege for the second year, as agreed, and did thereby procure the signature of the said Eliza to the lease named-in the complaint, by fraud, false representation and deceit, and did not afterwards alter or change the same, as was represented should be done, but on the contrary, refused so to do;, and that said lease having-been so obtained by fraud, deeeit'and false representations, was absolutely void, and no action could be maintained thereon for the recovery of any rent named therein. He further alleged that after the execution of the lease in the complaint mentioned, by means of the said fraudulent representations of the plaintiff or his agent, the plaintiff or his agent presented the samé to the defendant, with an instrument in writing annexed, for him to sign; that the plaintiff or his said agent, then falsely and fraudulently represented to the defendant, that said 'lease was for one year only, with the privilege to said Eliza to take the said building, furniture, &e., for a second year, and that said Eliza had signed the same, and that the agreement then presented for the defendant to sign was an instrument by which he became responsible that said Eliza should pay said rent for one year only, to wit, the first year; that the defendant thereupon stated to said plaintiff or his agent, that he then had no time to read said lease or writing; that said plaintiff or his agent, thereupon falsely and fraudulently represented to him that said lease and paper were correct, and as represented, and was only security for rent for the first year; that the defendant then, without reading said lease or paper, and believing it to be an agreement by which he became responsible that said Eliza should pay the rent for the first year, and for one year only, and believing said representations to be true, and relying solely upon them, signed the writing or instrument set forth, or intended to be set forth in the complaint; that all and each of said representations so made to the defendant were false, and falsely and fraudulently made, and with the intent to deceive and defraud the defendant, and that by reason thereof he, the defendant, was deceived, and fraudulently induced to sign and deliver said alleged writing or instrument, and that the same was fraudulently obtained and void, for any and all purposes, and ho action could be maintained thereon.
    On the trial, the jury, after the charge of fhe court, rendered a verdict as follows: “ The jury find for the plaintiff the whole amount, $6227, less $700 damages by Miss Howland;” and also found verbally on certain questions submitted to them by the court.
    The court then directed a verdict to be entered, for the plaintiff for $5527.
    
      The defendant appealed from the judgment entered on the verdict.
    
      S. A. Nelson, for the appellant.
    
      A. M. Bigelow, for the respondent.
   By the Court, Ingraham, P, J.

The evidence showed that the roof of the house leaked so hadly that the hoarders moved from the rooms, and they had to use tubs to prevent the water from going into the second story. The surrender which the defendant relied on was, as stated in the answer, a surrender of the premises, and acceptance by the plaintiff, and by the evidence, a surrender of the keys on the 30th of November, 1866.

By the answer no other surrender was set up than a surrender by the tenant, and acceptance by the landlord. On that issue, the jury'have found for the plaintiff. The defendant asked the court to charge that if there was a surrender o.n the 30th of November, .the lease became canceled, and of no effect. This request, was too broad,

' even if such a defense could be set up, under the answer. The lease did not become canceled. It ceased only from the day of surrender. The cause of action for that quarter accrued on the 1st of November preceding, and the action was commenced on the 6th of November. There Was, therefore, no such defense existing at the commencement of the suit, or properly admissible, under the answer. The refusal to charge on that point, as requested, was therefore not error.

The finding of the jury upon the question of acceptance by the landlord, was upon contradictory evidence, and not so clearly against the weight of evidence as to justify any interference with it.

The only remaining question is, as to the exclusion of the question put to the defendant, whether he would have signed as surety if he had known that by it he became surety for two years. Upon the charge of fraud in obtaining the defendant’s signature, the jury have also found for the plaintiff) and the verdict on that finding, also, cannot be disturbed, unless the question excluded should have been admitted. This question is not one of intent. There are cases where it has been held that the intent of a party may be shown. Such was the case of Thurston v. Cornell, (38 N. Y. 281, 286,) where a party was allowed to show what was her intent in reserving a slim of money on making a loan, and that it was for some other purpose than interest. The rule is thus stated to be: “Where the character of the transaction depends upon the intent of the party, it is competent to inquire of him what his intention was.”

[First Department, General Term, at New York,

January, 1, 1872.

In Seymour v. Wilson, (14 N. Y. 567,) it was held proper to inquire of a witness whether his intention, in making an assignment, was to delay or defraud his creditors. And in Thorn v. Helmer, 2 Keyes, 27,) the question whether he believed certain representations by which' he alleged he was defrauded.

The question in this case is not one of intent. It was whether the witness had been defrauded. On this point, all the testimony had been admitted, and it was not proper to ask the witness what he would have done under other circumstances. He did testify that he agreed to be surety only for one year. If that was believed, it disposed, of the question. If it was not, it was immaterial whether he would have been surety for two years, or not.

The judgment should be affirmed. •

Ingraham, P. J., and Cardozo and Geo. G. Barnard, Justices.  