
    ADALINE T. SMITH, Respondent, v. JOSEPH STAGG, et al., Appellants.
    Before Sedgwick, Oh. J., and Russell, J.
    
      Decided December 20, 1880.
    
      Amendment upon the trial.—Judge's charge as to covenants in lease.
    
    Appeal by the defendants from a judgment entered on the verdict of a jury.
    The action was for breach of the covenants of a lease.
    The court at General Term, after a statement of the facts, held that an amendment of the complaint on the trial, which fixes upon a defendant sued as surety on a lease, a liability as principal, on the ground that the person for whom he was surety was in reality only his agent in the transaction, cannot be allowed.
    
      Also, that it is error for the judge to charge unqualifiedly that the defendant was bound to surrender the premises, &c., in as good condition as they were when he took them, where the covenant shed on provides that they shall be surrendered in as good condition, &c., “damage by the elements, reasonable wear and tear, &c., excepted.”
    
      Arnoux, Hitch & Woodford, attorneys, and William H. Arnoux, of counsel, for appellant.
    
      Randolph B. Martine and Charles A. Jackson, for respondent.
   Opinion by Horace Russell, J.; Sedgwick, Ch. J.. concurred.

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