A surrender and acceptance do not discharge liability for rent already accrued, although payable in advance. The tenant’s remedy in such a case is by way of counterclaim or independent action. O’Brien v. Smith, 37 N. Y. St. Repr. 41; affd., 129 N. Y. 620. In this case, the rent became due in advance, on September 1, 1900, under the terms of the lease, and, as no counterclaim was' interposed to cover the portion of the month of September alleged to have been surrendered and accepted by the landlord, the plaintiff was entitled to a judgment for the entire month’s rent.
The judgment, therefore, must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Andrews, P. J., and Blanchard, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.