
    Surrey Realty Corp., Respondent, v. Joseph H. Ginsberg, Appellant.
    Supreme Court, Appellate Term, Second Department,
    March 28, 1962.
    
      H. Gilbert Polinsky and Bernard Meyerson for appellant. Henry S. Salamon and Wallace M. Germain for respondent.
   Per Curiam.

It was error to exclude tenant’s proffered testimony with regard to a claimed oral agreement under which he was to remain in possession after the written lease expired. Such testimony, if credited, would tend to prove a new and distinct agreement and would not violate the parol evidence rule.

The final order awarding possession for nonpayment of rent and judgment for rent unanimously should be reversed and a new trial ordered, with $30 costs to tenant to abide the event. Final order and judgment, insofar as they dismiss the counterclaim without prejudice, should be affirmed without costs.

Concur — Hart, Brown and Benjamin, JJ.

Final order reversed, etc.  