I concur. The circumstances disclosed by the record do not justify the conclusion that there was a surrender by operation of law of the lease to Aaron Newman. In the absence of such a surrender, Aaron Newman continued to be liable under the terms of the lease. In this-view of the case, the present action is merely an attempt to hold the defendant as surety for the default of Aaron Newman, and not for the default of Aaron Newman’s assignee. This is precisely the liability which the defendant assumed under his contract. I think we must assume that the assignor of the lease in Murphy v. Ottman, 127 App. Div. 563, surrendered his lease, or was otherwise discharged from liability under it. So construed, Murphy v. Ottman, supra, is in harmony with the authorities which are cited in the note to the passage quoted by Mr. Justice Lehman from. McAd am on Landlord and Tenant. That an assignment of a lease by a lessee, with the lessor’s consent, does not operate to release a surety who has agreed to answer for the default of the lessee, has been directly held in Farnham v. Monroe, 35 Ill. App. 114, and Dietz v. Schmidt, 27 id. 115.
Judgment reversed and new trial ordered, with costs to appellant to abide event.