Opinion
December 9, 1938.
In an action to recover damages alleged to have been sustained because of breach of covenant of a written lease, judgment in favor of plaintiff reversed on the law, with costs, and judgment directed in favor of defendant, dismissing the complaint, with costs. The finding of the court that the lease was not surrendered is clearly against the weight of the evidence. This court finds that the new lease was made before the tenant vacated the premises. This constituted an acceptance of surrender by the landlord. Lazansky, P.J., Hagarty, Davis, Adel and Taylor, JJ., concur.