On March 18, 1887, the plaintiffs leased to the firm of Kantrowitz & Epstein thepremises known as 5To. 45 West Fourteenth street, in the city of 5Tew York, for the term of six years from May 1, 1887, at the-yearly rent of- $6,000, payable in monthly installments, in advance, upon the first day of each year and every month. The lease contained the usual covenants, and also a provision that possession of the premises would be given on May 1, 1887, or sooner, if alterations thereto were completed. Attached to the lease was a memorandum signed by the parties, providing for certain alterations in and upon the premises therein demised. The defendant, under his hand and seal, became individually responsible as surety for the payment of the rent reserved in such lease. It appears from the evidence that the repairs contemplated were not finished on May 1, 1887, whereupon the lessees offered payment of $500 for the first month’s rent of the premises, and demanded possession thereof, to which answer was made that the alterations were not yet finished. The rent was not paid according to the terms of the lease. The plaintiffs then brought suit against the defendant for its recovery, who contested the payment thereof oh the ground that the premises in question had never been accepted by the lessees, and also that they had duly tendered the rent in dispute, and demanded possession of the premises, which was refused. Upon the trial a verdict was directed for the plaintiffs for the amount claimed, and the judgment entered thereupon was affirmed in the-court below, from which this appeal is taken.
The lessees were liable upon their covenant, and the surety was properly held responsible upon his individual obligation for the payment of the rent,. (Jaffe v. Harteau, 56 N. Y. 398,) as he had set up no claim for damages on account of a breach of the covenant, (Edgerton v. Page, 20 N. Y. 285.) There was no provision in the lease fixing the time when the alterations upon the premises were to be completed, and, in view of the memorandum attached to-the lease, it must be assumed that the lessees contracted with the understanding that the time fixed for giving possession of the premises (May 1, 1887) was not imperative. The alleged tender set up in the answer was not available as a defense. Becker v. Boon, 61 N. Y. 317. It was a tender made before suit, and the amount offered was not paid into court. 5for do I think, upon the testimony offered', that there was any waiver by the plaintiffs 'em their legal rights in the premises. The distinction between a right of action upon a covenant contained in a sealed instrument for the payment of rent, and that for use and occupation only, is no longer an open question. The exceptions noted at folios 41, 42, and folios 49-51, are without merit. There was no ambiguity in the lease, and paroi evidence was inadmissible to enlarge its scope or terms. The j udgment appealed from should be affirmed, with costs.
Van IIoesen, J., concurring.