Bockes, J.:
I am of tbe opinion that this case should be controlled in its disposition by Smith v. Niver (2 Barb., 180). The plaintiff consented to the change of tenancy from the defendant to Powell, and received rent from the substituted tenant; indeed the facts, as proved and found by the referee, put the case in a stronger light even, for it is proved and expressly found that the plaintiff agreed to receive Powell as tenant in the place of the defendant, and to look to the former for the rent to accrue after his entry, and to release the defendant from further liability under the lease, and it was under such arrangement that Powell went into possession and became plaintiff’s tenant, and under and pursuant to which rent was collected or received by the latter.
Although this arrangement was oral and related to a term exceeding one yeai’, to wit, for one year and one month, it operated, with the acts of the parties under it, to discharge the defendant from a claim for future rent, as was, in fact, expressly agreed. It was, in effect and in fact, a surrender of the remaining term “ by act or operation of law.” Such surrender was admissible under the statute of frauds (3 R. S. [7th ed.], 2326, § 6), inasmuch as a surrender “ by act or operation of law ” is expressly excepted from it. This exception left such surrender to remain as at common law. It is important, of course, that it be established, that the lessor gave assent to the termination of the lease as to the original lessee, and accepted the new party as tenant in his place. But such was just this case. In Smith v. Niver, Harris, J., says: “It is undoubtedly conclusively settled by authority that a second lease, to operate as an effectual surrender of the first, must itself be effectual to vest in the lessee the term it professes to convey, and must bind him to a'performance of its conditions on his part.” The learned judge was here speaking of the precise case stated by him, a case unaccompanied by acts of the parties, which, with the agreement, would carry with them an element of estoppel, for in the next sentence he adds: “ But it has never, I apprehend, been decided that a lessor who has consented to a change of tenancy, and permitted a change of occupation, and received rent from the new tenant as an original and not as a sub-tenant, can afterwards charge the original tenant for rent accruing during the [433]*433occupation of the new tenant.” And, further, “ if the lessor, in fact, ■consent that the lessee shall cease to be liable and accepts a substituted tenant, the first tenant must be held to be discharged. The lessor has his remedy against the new tenant, and is estopped from, denying a legal surrender of the first lease f and he repudiates the •doctrine to the contrary of this, sought to be maintained on the strength of Schieffelin v. Carpenter (15 Wend., 400), as to which he says, if this case is to be regarded as an authority, therefor, “ I think it is in that respect wholly unsupported, either by principle or adjudged cases.” The remarks of the learned judge above quoted .are not, as was supposed by the learned referee, to be limited in their application to a case where the substituted tenancy was for a period not exceeding one year, for they were made with reference to a surrender “by act or operation of law,” which, as .above suggested, is excepted from the statute, and is left to have effect as at common law, hence would, when proved, apply to a longer as to a shorter term alike. In Beall v. White (94 U. S. R., 389), it is said by IVEr. Justice Oliffoed that “text writers agree that a surrender is the yielding up the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. It is either in express words, by which the lessee manifests his intention of yielding up his interest in the premises, or hy operation of law, when the parties without express surrender do some act which implies that they have both agreed to ■consider the surrender as made,” citing both Woodfall and Taylor •on Landlord and Tenant in support of his remarks. This subject is considered quite elaborately, and with clearness and precision, in Bingham on Real Estate (p. 260), where the distinction between a surrender by express words and a surrender by implication, that is, by operation of law, is marked and- commented upon'. It is'there said that “the material point of such an issue is one of ■evidence, whether the intention of both the lessor and the lessee, is proved by words only, and not by written evidence) as prescribed in the statute of frauds, or by their • conduct and actions. If it is proved by words only, the agreement is within the statute of frauds, 'and cannot operate as a surrender. If their intention to surrender is made plain by their conduct and actions, in a way which permits of no mistakes or misrepresentations, by means of [434]*434the perjury or the misunderstanding of witnesses, the agreement to’ surrender is so proved as not to be within the statute of frauds, but amounts to an ‘ act or operation of law,’ as that phrase is used in the statute, and effectuates a surrender,” and in support of this doctrine many cases are there cited. (See, also, Blumenthal v. Bloomingdale, 100 N. Y., 558.) In Matthews v. Sawell (8 Taunt., 270) it was held that a mere parol surrender of a written lease having more-than three years to run was void under the statute of frauds, and consequently the lessee was not discharged therefrom. In this case importance was given to the fact that the plaintiff had not assented to any change of tenancy. Dallas, J., said: “ If the plaintiff had in fact consented that the defendant should cease to be Hable, and had gone beyond that and had accepted a substituted tenant, I should have-thought the defendant discharged.” (See, also, remarks of the other judges to the same effect.) The case supposed by the learned judge, as above given, is quite like the present. It is laid down in 4 Wait’s Actions and Defenses, 212, after speaking of express surrenders-touched by the statute of frauds, that “ a sun-ender by operation of' law is effected by some- less formal act of the parties, from which a mutual agreement by them to consider the surrender as made may be implied; some aot of notoriety which estops them from denying that it has taken place; ” and it is added: “ Thus any agreement between the parties that the term shall be put an end to, wMch is un equivocally acted upon by both, is such surrender; ” and, further, “ an actual and continued change of possession by the mutual consent of parties is a surrender by operation of law, whether the-possession is delivered to the landlord himself or to another for him; ” and, still further, “ acceptance of possession by the landlord and his leasing the premises to another, or accepting an, under tenant or an assignee as his tenant, followed by an actual possession by the latter, also operates as such a surrender.”
Many cases are cited in the text-books, above referred to, both in England and in this country where the above propositions have been adjudicated, to which attention is called without here giving them in detail. (See, also, McAdam on Landlord and Tenant [2d ed.], §§ 207, 208, and cases there cited.) It must be held in mind that we are considering the question as to what would be effectual as a surrender “ by act or operation of law,” according to the rules of [435]*435the common law, inasmuch as a surrender “ by act or operation of law ” is not witbin the statute of frauds, but is expressly excepted from it.
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Bockes, J.:
I am of tbe opinion that this case should be controlled in its disposition by Smith v. Niver (2 Barb., 180). The plaintiff consented to the change of tenancy from the defendant to Powell, and received rent from the substituted tenant; indeed the facts, as proved and found by the referee, put the case in a stronger light even, for it is proved and expressly found that the plaintiff agreed to receive Powell as tenant in the place of the defendant, and to look to the former for the rent to accrue after his entry, and to release the defendant from further liability under the lease, and it was under such arrangement that Powell went into possession and became plaintiff’s tenant, and under and pursuant to which rent was collected or received by the latter.
Although this arrangement was oral and related to a term exceeding one yeai’, to wit, for one year and one month, it operated, with the acts of the parties under it, to discharge the defendant from a claim for future rent, as was, in fact, expressly agreed. It was, in effect and in fact, a surrender of the remaining term “ by act or operation of law.” Such surrender was admissible under the statute of frauds (3 R. S. [7th ed.], 2326, § 6), inasmuch as a surrender “ by act or operation of law ” is expressly excepted from it. This exception left such surrender to remain as at common law. It is important, of course, that it be established, that the lessor gave assent to the termination of the lease as to the original lessee, and accepted the new party as tenant in his place. But such was just this case. In Smith v. Niver, Harris, J., says: “It is undoubtedly conclusively settled by authority that a second lease, to operate as an effectual surrender of the first, must itself be effectual to vest in the lessee the term it professes to convey, and must bind him to a'performance of its conditions on his part.” The learned judge was here speaking of the precise case stated by him, a case unaccompanied by acts of the parties, which, with the agreement, would carry with them an element of estoppel, for in the next sentence he adds: “ But it has never, I apprehend, been decided that a lessor who has consented to a change of tenancy, and permitted a change of occupation, and received rent from the new tenant as an original and not as a sub-tenant, can afterwards charge the original tenant for rent accruing during the [433]*433occupation of the new tenant.” And, further, “ if the lessor, in fact, ■consent that the lessee shall cease to be liable and accepts a substituted tenant, the first tenant must be held to be discharged. The lessor has his remedy against the new tenant, and is estopped from, denying a legal surrender of the first lease f and he repudiates the •doctrine to the contrary of this, sought to be maintained on the strength of Schieffelin v. Carpenter (15 Wend., 400), as to which he says, if this case is to be regarded as an authority, therefor, “ I think it is in that respect wholly unsupported, either by principle or adjudged cases.” The remarks of the learned judge above quoted .are not, as was supposed by the learned referee, to be limited in their application to a case where the substituted tenancy was for a period not exceeding one year, for they were made with reference to a surrender “by act or operation of law,” which, as .above suggested, is excepted from the statute, and is left to have effect as at common law, hence would, when proved, apply to a longer as to a shorter term alike. In Beall v. White (94 U. S. R., 389), it is said by IVEr. Justice Oliffoed that “text writers agree that a surrender is the yielding up the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. It is either in express words, by which the lessee manifests his intention of yielding up his interest in the premises, or hy operation of law, when the parties without express surrender do some act which implies that they have both agreed to ■consider the surrender as made,” citing both Woodfall and Taylor •on Landlord and Tenant in support of his remarks. This subject is considered quite elaborately, and with clearness and precision, in Bingham on Real Estate (p. 260), where the distinction between a surrender by express words and a surrender by implication, that is, by operation of law, is marked and- commented upon'. It is'there said that “the material point of such an issue is one of ■evidence, whether the intention of both the lessor and the lessee, is proved by words only, and not by written evidence) as prescribed in the statute of frauds, or by their • conduct and actions. If it is proved by words only, the agreement is within the statute of frauds, 'and cannot operate as a surrender. If their intention to surrender is made plain by their conduct and actions, in a way which permits of no mistakes or misrepresentations, by means of [434]*434the perjury or the misunderstanding of witnesses, the agreement to’ surrender is so proved as not to be within the statute of frauds, but amounts to an ‘ act or operation of law,’ as that phrase is used in the statute, and effectuates a surrender,” and in support of this doctrine many cases are there cited. (See, also, Blumenthal v. Bloomingdale, 100 N. Y., 558.) In Matthews v. Sawell (8 Taunt., 270) it was held that a mere parol surrender of a written lease having more-than three years to run was void under the statute of frauds, and consequently the lessee was not discharged therefrom. In this case importance was given to the fact that the plaintiff had not assented to any change of tenancy. Dallas, J., said: “ If the plaintiff had in fact consented that the defendant should cease to be Hable, and had gone beyond that and had accepted a substituted tenant, I should have-thought the defendant discharged.” (See, also, remarks of the other judges to the same effect.) The case supposed by the learned judge, as above given, is quite like the present. It is laid down in 4 Wait’s Actions and Defenses, 212, after speaking of express surrenders-touched by the statute of frauds, that “ a sun-ender by operation of' law is effected by some- less formal act of the parties, from which a mutual agreement by them to consider the surrender as made may be implied; some aot of notoriety which estops them from denying that it has taken place; ” and it is added: “ Thus any agreement between the parties that the term shall be put an end to, wMch is un equivocally acted upon by both, is such surrender; ” and, further, “ an actual and continued change of possession by the mutual consent of parties is a surrender by operation of law, whether the-possession is delivered to the landlord himself or to another for him; ” and, still further, “ acceptance of possession by the landlord and his leasing the premises to another, or accepting an, under tenant or an assignee as his tenant, followed by an actual possession by the latter, also operates as such a surrender.”
Many cases are cited in the text-books, above referred to, both in England and in this country where the above propositions have been adjudicated, to which attention is called without here giving them in detail. (See, also, McAdam on Landlord and Tenant [2d ed.], §§ 207, 208, and cases there cited.) It must be held in mind that we are considering the question as to what would be effectual as a surrender “ by act or operation of law,” according to the rules of [435]*435the common law, inasmuch as a surrender “ by act or operation of law ” is not witbin the statute of frauds, but is expressly excepted from it. So, when a surrender “ by act or operation of law ” is proved according to the common law, it is as effectual as a discharge of the lessee, as if no statute of frauds existed.
I am of the opinion that an agreement entered into- and acted upon by all the parties, by the plaintiff, the defendant and Powell, under and pursuant to which the defendant surrendered the possession, and Powell entered as substituted tenant, with the consent -of the plaintiff, indeed, under an express agreement with the latter to that effect, coupled with the fact of an acceptance of rent by the latter from the substituted tenant, operated to discharge the defendant from further liability under the lease. If a consideration for the agreement be of any importance in view of the fact that it was acted upon and fully carried out, save as to the payment of the rent for the two months here claimed, that seems well established. As to the plaintiff, he accepted a restoration of the premises, or its equivalent, a substituted tenant, with the liability of the latter for the future use and occupation ; as to the defendant, he surrendered possession with such consequences as resulted therefrom; and as to Powell, he became the substituted tenant with possession.
If the conclusion above reached be sound, the judgment for the plaintiff is wrong and should be reversed.