This is an action by the landlord against the surety on a lease. The defense is that the lessee, one Jacob H. Farrington, had been the tenant of the landlord for two years previous; that during those previous years the lessee had put certain fixtures in the premises; that, when he was about to take the lease in question, the plaintiff, as consideration therefor, . promised that he would take said fixtures, and pay for the same by allowing the value on the last payments which should come due on the lease. In the trial before a referee evidence was given by defendant of conversations tending to support this defense. Such evidence was objected to as varying the conditions of a written instrument. The evidence was taken subject to this objection, and was finally excluded by the referee. The question on this appeal is on the correctness of the referee’s ruling in this respect. It is claimed by the defendant that this ruling was incorrect on two grounds: First, that ' the general rule does not apply when only one side of the contract is in writ*453ing, and the oral evidence tends to affect the otherside; and, second, that such general rule does not apply to collateral agreements.
The first of those grounds assumes that the landlord’s part of the contract of lease was not in writing. The written instrument produced by plaintiff was that which is known as the tenant’s part in a so-called landlord and tenant agreement. This is a familiar agreement, one part of which is usually signed by the landlord, another by the tenant; each containing the agreements of the respective parties. It was not necessary for the defendant, if not called upon, to produce the part of the agreement signed by the landlord, and no copy is in the case. But the objection to this evidence assumed that the landlord’s part of the agreement was in writing. The referee’s report seems to so state the fact. He says a written lease was executed by both parties. Certain findings of fact requested by the plaintiff imply this. It does not distinctly appear what was the response of the referee to these requests, but the defendant excepted to the referee’s finding of the second and third of these requests, from which we may infer that they were found. Now, as it is not probable that the lessee would execute this part of the contract of lease without receiving the landlord’s part executed by him, and as the form of this kind of lease is well known, we think that we must understand from the referee’s report and from these other papers in the case that there was such a landlord’s agreement, although it has not been printed in the case. If there had been no writing signed by the landlord, the objection to oral evidence could hardly have been made; for there could have been no agreement in writing on the landlord’s part which the oral evidence could have tended to vary or contradict. In this view of the case, the first ground of defendant’s appeal fails. The second ground is that the alleged oral agreement was collateral, and therefore admissible. Now, it is to be noticed that the defendant cannot claim that these fixtures were a payment on the rent. The landlord refused to accept them, and caused them, or at least part of them, to be removed. Jacob H. Farrington testifies that all his fixtures were torn out, and were in the middle of the floor; so that, assuming that the plaintiff made the agreement claimed by the defendant,, lie refused to perform it. While, then, he may be liable on his refusal for damages caused thereby to the lessee, he cannot be correctly said to have received payment of the rent. Of course, if he had received payment, either in money or in anything else accepted as payment, this would have been a credit on the amount payable on the lease; but if he only made an agreement that he would accept certain things in payment, which agreement he afterwards refused to perform, this can give the lessee only a counter-claim. The lessee is not bound to assert his damages in an action on the lease. The lessee still has his property, and can recover only damages for the breach of the agreement to purchase. Or, if the lessor unlawfully retains any of this property, and refused to pay the lessor therefor, then the lessor may be liable to the lessee. Hence the surety cannot asserttliis defense. The plaintiff has not been paid. The surety cannot set up this counter-claim, which belongs to the lessee. Gillespie v. Torrance, 25 N. Y. 306. Whether, on a proper allegation in the answer of the lessee’s insolvency, an equitable set-off of this claim might be allowed, we need not say. But to such a claim to set off in equity this claim of the lessee, the lessee himself would be a necessary party, because the claim belongs to him, and he cannot be deprived of it without his consent, or without his being heard. The judgment, therefore, is right, and is affirmed, with costs.