With so much of the majority opinion as holds that the question whether *Page 627 a landlord has accepted a surrender of the leased premises is dependent upon his intent I am in entire agreement. But, even though at the time of the abandonment of the premises he had no intent to accept a surrender, he may thereafter so deal with them as to evidence an intent to terminate the lease in its entirety, and if he does he can no longer base a recovery upon it. If, for instance, he should, before the date of the expiration of the lease, enter upon the premises, substantially alter them and use them for a business conducted by himself, I think the contract of leasing would then be at an end. To state the matter somewhat generally, the owner must, to preserve his rights under the lease, continue to treat the premises as being still the subject-matter of it and if he treats them as his own, his rights under it are ended. When, in this case, the plaintiffs leased the premises abandoned by the tenant in conjunction with adjoining premises owned by them, in one lease and for a single rental, and caused an opening to be made between so that both could be used together, it seems to me that they ceased to deal with the premises abandoned by the tenant as subject to the lease and thereafter dealt with them in their own right as owners. I think the lease was then at an end and the plaintiffs were not entitled to thereafter recover the rent provided in it. Friedlander v. Citron, 129 N.Y.S. 427. *Page 628