I agree with Mr. Justice Dayton in the result reached but not in his views. I do not believe that the first defense can he sustained upon the theory that the facts pleaded would establish that the lease had “no force, efficacy or effect.” Grierson v. Mason, 60 N. Y. 394. In that case the instrument was never intended to give rise to any right between the parties; in this case the plaintiff intended to give the defendant a valid lease for the purpose of allowing him to transfer the same immediately to his assignees who assumed all the obligations thereof. The defendant does not claim that the instrument on its face does not express the true intent of the parties. He claims only that, after the lease was made under the circumstances *560alleged, the assignment of the lease operated as a surrender. To constitute such a surrender, the plaintiff must have agreed to accept the assignees as substituted tenants and to discharge the defendant. Smith v. River & Rockefeller, 2 Rarb. 180. It seems to me that the execution of the lease under the circumstances alleged, the immediate assignment, the receipt of rent from the assignees, and the statement to defendant that he was released from liability under the lease are more than are required to establish a surrender. Hor do I think that the plaintiff’s claim that a surrender cannot take place before the lease is executed need receive serious consideration. Clearly a surrender of an estate can take place only after the estate has come into existence, but in this case it appears from the complaint that the defendant was in possession of the premises before the execution of the lease, and the estate became vested in him at the moment the lease was executed and could be surrendered immediately thereafter.
Giegerich, J., concurs with Lehman, J.
Judgment reversed, and new trial ordered.