majority">By the Court, Welles, J.

The objection of misjoinder of defendants, if it had been interposed in proper time and man*42ner, would have been fatal to the plaintiff’s recovery against both defendants in one action. The contract of each defendant was, substantially, to secure the same object, to wit, the payment of the rent; but their undertaking was several and not joint. The obligation of Percy, the principal, was primary and absolute ; that of L’Amoraux was secondary and conditional. Their obligations to the plaintiff were the same, and their liability to an action would arise at the same moment, and to the same extent precisely; still, it was not a joint undertaking. (De Ridder v. Schermerhorn and Purdy, 10 Barb. 638. Hall v. Farmer, 5 Denio, 484; affirmed on appeal, 2 Comst. 553.) These cases may be regarded as overruling the case of Luqueer v. Prosser, (1 Hill, 256,) and others of like import. Section 120 of the code, cited and relied upon by the respondent’s counsel, does not help him. That section provides for including in the same action, persons severally liable upon the same obligation or instrument—not upon different instruments, as in this case.

It is contended, however, by the respondent’s counsel, and it seems to me with unanswerable force, that this objection, not appearing to have been taken and pointed out by the defendants on their motion for a nonsuit, should not now be listened to. The return of the justice states that when the plaintiff rested the defendant moved for a nonsuit, which was denied. No ground whatever was stated for the motion. Neither the justice nor the plaintiff had his attention directed to the question of misjoinder. If it had been done the motion might have been granted, or the plaintiff might have discontinued; or, perhaps, would have been entitled to elect against which of the defendants he would proceed. It should now be regarded the same as if a motion for a nonsuit had not been made. The point is strictly a legal, not to say a technical one. No injustice has been done, as the cause of action against both defendants was fully made out.

The only remaining question arises upon the exclusion, by the justice, of. evidence offered by the defendants of the plaintiff’s failure to fulfill his covenants contained in the agreement *43of May 22d, 1854. The justice excluded the evidence on the ground that the agreement was superseded by the lease, which bore date the 26th of the same month. The defendants offered to prove that at the time the lease or contract of May 26th, 1854, was made, it was understood between the parties that the first contract should remain valid and subsisting. This was objected to, and the objection sustained. If the effect of the lease or contract of May 26th, aside from the agreement sought to be proved, in relation to keeping on foot the agreement of the 22d of May, would have been to merge or supersede the latter, parol evidence of such fact, that is, the fact that it was to remain a subsisting agreement, was, I think, inadmissible, as varying by parol the effect of the lease, and changing the rights of the parties under it; and the question must be decided irrespective of such offer and rejection. In my opinion, the lease or second contract did not supersede the agreement before entered into by the plaintiff to make repairs, &c. They were not inconsistent with each other, and there was no conflict whatever between them. And there is nothing in the lease, in terms or by implication, superseding the plaintiff’s agreement to make repairs. But it does not release the defendants from paying the rent. The remedy of the lessee, in such case, is by action against the lessor upon the covenant to repair, &c. ( Watts v. Coffin, 11 John. 495. Osborn v. Etheridge, 13 Wend. 339. Christopher v. Austin, 1 Kern. 216.) The cases cited by the appellants’ counsel, go to show that where the lessor has evicted the lessee, or prevented him from entering upon the demised premises, or any part of them, he shall not recover rent.

[Monroe General Term,March 2, 1857.

The judgment of the county court should be affirmed.

Ordered accordingly.

T. R. Strong, Welles and Smith, Justices.]

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