I dissent. There is no doubt that if there had been no provision in the lease permitting it, the assignment of the lease by Hammond, and the acceptance by the lessors of the assignee as tenant, would have operated to release the surety for Hammond. . That, however, *566is not the case presented by the proofs. The lease and the contract of suretyship were coincident in time, and the latter was expressly conditioned upon, and made in consideration of the execution of the lease. To ascertain the respective rights and obligations of the landlord and the surety, the lease and the contract of suretyship must be read together. It is true that the surety’s agreement was that Hammond would perform the covenants of the lease, and if it stood alone it could not be extended to cover a default by an assignee of the lease. The latter paper, however, contains a condition that Hammond may not assign the lease “ except to stich person or persons as may become partners or associates in business with him in the management or profits of said hotel, or to a corporation consisting mainly of.himself and his associates in business.” This was equivalent to an agreement on the p'art of the landlord as well as of the surety, that Hammond might assign the lease to “a corporation consisting mainly of himself and his associates in business,” and the proof shows, as the. referee has found, that the Murray Hill Hotel Company was such a corporation. The assignment being, therefore,'within the terms and contemplation of the contract of' suretyship did not operate to discharge the surety. ' (Morgan v. Smith, 70 N. Y. 537.)
Mor do I consider that the agreement of Juno 19, 1902, can be construed as an abrogation of the lease and the making of a new agreement in place thereof. . Its every line and word indicates that the parties to it had no such intention. At the very most it' amounted only to an agreement by the landlord to forbear the payment of rent until September 1, 1902, while not releasing the tenant from any of the obligations of the lease, including the ultimate payment of the rent which might accrue during the period of forbearance. Mor do I consider that the correspondence which passed between the parties subsequent to. October 1,1902, constituted such a presentation and rejection of a claim as set the short Statute of Limitations running. But if it should be held that the contract of June 19, 1902, amounted to an agreement by the landlord not to enforce the payment of any rent until September 1, 1902, and that the subsequent correspondence constituted a sufficient presentation and rejection of a claim for the amount of rent then unpaid,' still the surety was not wholly discharged thereby. Each install*567ment of rent reserved by the lease was a separate and independent demand, and an extension of the time of payment of one or more installments, or the starting of the short Statute of Limitations as to one or more installments, would not impair the obligation of the surety as to these installments which fell due subsequently. (Ducker v. Rapp, 67 N. Y. 464; Coe v. Cassidy, 72 id. 133.) I find nothing in the case, therefore, which under the most favorable construction of the evidence operated to release the surety or his estate from an obligation to make good the unpaid rent which accrued subsequent to September 1, 1902, and to that extent at least the plaintiff should have recovered judgment. I am, therefore, for reversal and a new trial.
Clarke, J., concurred.
• Judgment affirmed, with costs.