majority">By the Court, Ingraham, P, J.

The evidence showed that the roof of the house leaked so hadly that the hoarders moved from the rooms, and they had to use tubs to prevent the water from going into the second story. The surrender which the defendant relied on was, as stated in the answer, a surrender of the premises, and acceptance by the plaintiff, and by the evidence, a surrender of the keys on the 30th of November, 1866.

By the answer no other surrender was set up than a surrender by the tenant, and acceptance by the landlord. On that issue, the jury'have found for the plaintiff. The defendant asked the court to charge that if there was a surrender o.n the 30th of November, .the lease became canceled, and of no effect. This request, was too broad,

' even if such a defense could be set up, under the answer. The lease did not become canceled. It ceased only from the day of surrender. The cause of action for that quarter accrued on the 1st of November preceding, and the action was commenced on the 6th of November. There Was, therefore, no such defense existing at the commencement of the suit, or properly admissible, under the answer. The refusal to charge on that point, as requested, was therefore not error.

The finding of the jury upon the question of acceptance by the landlord, was upon contradictory evidence, and not so clearly against the weight of evidence as to justify any interference with it.

The only remaining question is, as to the exclusion of the question put to the defendant, whether he would have *557signed as surety if he had known that by it he became surety for two years. Upon the charge of fraud in obtaining the defendant’s signature, the jury have also found for the plaintiff) and the verdict on that finding, also, cannot be disturbed, unless the question excluded should have been admitted. This question is not one of intent. There are cases where it has been held that the intent of a party may be shown. Such was the case of Thurston v. Cornell, (38 N. Y. 281, 286,) where a party was allowed to show what was her intent in reserving a slim of money on making a loan, and that it was for some other purpose than interest. The rule is thus stated to be: “Where the character of the transaction depends upon the intent of the party, it is competent to inquire of him what his intention was.”

[First Department, General Term, at New York,January, 1, 1872.

In Seymour v. Wilson, (14 N. Y. 567,) it was held proper to inquire of a witness whether his intention, in making an assignment, was to delay or defraud his creditors. And in Thorn v. Helmer, 2 Keyes, 27,) the question whether he believed certain representations by which' he alleged he was defrauded.

The question in this case is not one of intent. It was whether the witness had been defrauded. On this point, all the testimony had been admitted, and it was not proper to ask the witness what he would have done under other circumstances. He did testify that he agreed to be surety only for one year. If that was believed, it disposed, of the question. If it was not, it was immaterial whether he would have been surety for two years, or not.

The judgment should be affirmed. •

Ingraham, P. J., and Cardozo and Geo. G. Barnard, Justices.

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