(dissenting):
On the 21st of January, 1880, the parties executed a lease under seal in duplicate, by which plaintiff leased to defendant for three years, beginning May 1, 1880, and ending April 30, 1883, certain *436premises known as the Morgan House, the rent payable,monthly. The defendant went into possession May 1, 1880, and continued as tenant till April 1, 1882. In the latter part of March, 1882, defendant bargained with one Powell for the sale of some hotel furniture and of defendant’s interest m the lease and premises. And, the bargain was completed April 1, 1882. By the terms of the bargain Powell was to take defendant’s place as plaintiffs tenant, and was to pay plaintiff the rent covenanted by the lease. Before making the bargain defendant informed plaintiff’s agent of Powell’s application to purchase. The referee finds upon a conflict of evidence that plaintiff’s agent verbally agreed with defendant to look to Powell for the rent to become payable on the lease from April 1, 1882, for the remainder of the term, and to release defendant therefrom. Defendant surrendered possession to Powell April 1, 1882, accordingly, and has had nothing further to do with the lease or the premises. Powell occupied the premises till some time in August, 1882, and then moved out. While in possession he paid to plaintiff the rent for the months of April, May and June, 1882. After Powell moved out the premises were occupied from September, 1882, by one Reed, as tenant of plaintiff, and Reed paid the rent during such tenancy. All the rent has been paid-, plaintiff except for the months of July and August, 1882. This is in arrears and for that plaintiff sues. The referee reported in plaintiff’s favor and defendant appeals.
At the time of the agreement between defendant and Powell and plaintiff there was more than one year of the term outstanding. The term, therefore, could not be assigned or surrendered, except by deed or conveyance in writing, or by act or operation of law. (2 R. S., m. p. 134, § 6; Smith v. Devlin, 23 N. Y., 363.) A sur-rendér by operation of law is effected when another estate is created by the reversioner, with the assent of the termor, inconsistent with the existing estate or term. (Coe v. Hobby, 72 N. Y., 141.) But to have that effect the lease, which is claimed to create an estate inconsistent with the existing estate, must be a valid and binding lease. (Schieffelin v. Carpenter, 15 Wend., 400.)
In.;the present ease there was no written surrender. There was no written surrender by operation of law, because there was no valid estatq, created inconsistent with the existing estate. The alleged *437agreement between plaintiff and Powell was by parol and was for more than a year. ( Wilson v. Lester, 64 Barb., 431.) In Smith v. Niver (2 Barb., 180) it was not for more tlian a year.
Further, the referee finds, and the evidence sustains the findings, that defendant agreed to assign his interest in the lease and premises to Powell, and that plaintiff consented. This is not the creation of a new estate, but solely the assignment of the existing estate created by the original lease to defendant. The assignment to Powell, even with plaintiff’s consent, did not release defendant. (House v. Burr, 24 Barb., 525; Damb v. Hoffman; 3 E. D. Smith, 361.) The cases on this subject do not speak of a substituted tenant, they speak of a surrender of the old lease in law by the creation of a new estate inconsistent with the old.
It does not appear how Reed came into possession, nor is his possession or his payment of rent to plaintiff material, except as it may affect rent thereafter accrued. The rent in dispute accrued prior to liis possession. The defendant urges that as there was a parol ■agreement to release defendant, on the faith of which defendant gave possession and assigned the lease to Powell, the agreement is valid notwithstanding the statute. The doctrine which defendant relies upon is recognized in 2 Revised Statutes (m. p. 135, § 10), which preserves the power of courts of equity to enforce specific performance in case of part performance. The cases cited by defendant are cases under that familiar doctrine. But the present is not such a case. The plaintiff has received nothing on the verbal contract to release which would make it unjust to refuse performance. The defendant has parted with nothing. On the contrary he has been benefited, because so far as Powell has paid defendant has been discharged. Indeed, it seems doubtful whether there'was any consideration for the plaintiff’s promise to release.
The judgment should be affirmed, with costs.
Judgment reversed, new trial granted, costs to abide the event. Referee discharged. ■ .