I concur in the majority view that the order appealed from should be modified to the extent of granting plaintiff summary judgment against defendants Dryfoos & Co. and Swarzman as to liability and in favor of defendant Klineman dismissing the complaint as to him and, as so modified, the judgment should be affirmed. With respect to defendant Peter Lamm, I have concluded that plaintiff landlord cannot impose liability because the default in paying rent did not occur while he was a partner, but occurred after his withdrawal from the partnership and the obligation to pay rent represented by the lease agreement was incurred before his admission into the partnership. With respect to defendant Kent M. Klineman, I recognize that the lease agreement was entered into by the partnership while he was a partner, but that the default occurred after he was no longer a partner. However, close reading of the record will disclose *840the following undisputed facts: When Klineman withdrew as a general and limited partner in Dryfoos & Co. on January 31, 1972, the certificate of limited partnership on February 25, 1972 was amended to reflect the fact that Klineman had withdrawn as a general and limited partner and to reflect the fact that the partnership was succeeded by a new partnership entitled Dryfoos & Black & Co. Defendant Klineman specifically requested Herbert Swarzman, managing partner of the succeeding partnership, to notify plaintiff of Klineman’s withdrawal and to provide plaintiff with a copy of the withdrawal agreement which indemnified Klineman against any claims, lawsuits, liabilities and costs attributable to any matter occurring after his withdrawal. In addition, to assure plaintiff was so advised, Kline-man sent a second copy himself of the withdrawal agreement, along with written notification of his withdrawal, to plaintiff. At the time that Kline-man withdrew, no default existed under the lease. On March 1, 1974, plaintiff and the agents in liquidation of the successor partnership entered into a "surrender agreement” whereby plaintiff acquired possession of the premises, thereby terminating the lease, and received in return an assignment of all subleases in which the successor partnership was sublessor and obtained the security deposits received by the successor partnership from its subtenants. The surrender agreement was executed by the agents in liquidation for the dissolved successor partnership. Defendant Klineman was never consulted with respect to this agreement, was not advised of its existence and never consented to its execution. At the time of the surrender agreement, no default existed with respect to the lease. It is well recognized by many authorities that when a partner transfers his interest in the partnership assets and retires from the partnership, he occupies the position of a surety, not only as between himself and the continuing partners, but as to all others who have had dealings with the partnership to whom notice of the new contract has been brought. Whether the retiring partner has been indemnified or obtained an indemnification agreement with respect to the payment of any firm debts which he may be called upon to make is immaterial, and his position remains only that of a surety for his former partners. Under this rule, creditors are bound to respect the suretyship relation thus existing, and any dealings with the partner continuing the partnership, that is, continuing the successor partnership, must be had with due regard to the rights of the retiring partner as surety or he will be discharged. (See Colgrove v Tallman, 67 NY 95; cf. Partnership Law, § 67, subd 3.) When a tenant offers to surrender possession of premises to a landlord prior to the expiration of the lease term and the landlord accepts such surrender, all future liability of the tenant for rent under the lease thereby terminates (Herter v Mullen, 159 NY 28). At the time of the surrender, plaintiff had not asserted a default and the rent had been paid in full. Absent execution of the surrender agreement, plaintiff would have had no right to obtain possession of the premises. Plaintiff attempted to preserve its rights against all former withdrawing partners in the surrender agreement, but with respect to Klineman, did not obtain his consent. The agents in liquidation for the succeeding subsequent partnership had no authority to bind Klineman to the terms of the surrender agreement. He cannot be bound by an agreement entered into more than two years after the partnership in which he was a partner was dissolved. Thus, the termination of the lease effectively discharged Klineman from any of his obligations thereunder. Plaintiff’s rights could be derived only from the terms of the surrender agreement and not from the lease which was terminated pursuant thereto, and Klineman was not a party to the surrender agreement. Therefore, there *841is no basis to predicate liability against Klineman. From a procedural point of view, it must be noted that plaintiff moved for summary judgment against all the defendants. Defendant Lamm specifically cross-moved for summary judgment in his favor. Defendant Klineman, while not specifically requesting summary judgment in his favor, put in his own personal affidavit and an affidavit of his attorney in opposition to plaintiff’s motion for summary judgment. Examination of plaintiff’s moving papers and defendant Klineman’s papers in opposition clearly raises the legal issues set forth above. Not only that, but plaintiff replied to defendant Klineman’s statement that he was released by the surrender. CPLR 3212 (subd [b]) specifically provides that if it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross motion. It is well recognized that summary judgment "searches the record” (see Wiseman v Knaus, 24 AD2d 869).