Misc.] Supreme Court, November, 1919. property, such as real estate and goods, wares and merchandise," and states that it "shall not be taken to mean money, deposits in bank, shares of stock, bonds, notes, credits or evidences of an interest in property and evidences of debt." In the same section intangible property is defined as "incorporeal property, including money, deposits in bank, shares of stock, bonds, notes, credits, evidences of an interest in property and evidences of debt." The words "consisting of " used in subdivision 2 of section 220 are, in my opinion, intended to be synonymous with or explanatory of the preceding words" evidenced by " in the same section. Tangible property could not, under the definition in section 243, consist of shares of stock, bonds, notes, etc., which are expressly excluded from the classification of tangible property, so that the qualification in section 220 must apply solely to intangible property. The real estate of the decedent was properly included by the appraiser among the taxable assets. The order fixing tax is affirmed. Order affirmed. NAT LEVINE, Plaintiff, v. SIDNEY ROSENSTEIN & Co., INC., Defendant. (Supreme Court, New York Special Term, November, 1919.) Statute of Frauds - oral agreement to surrender the unexpired term of a lease, not excceding one year, valid city of New York Real Property Law, § 232, as amended in 1918. Where the interest of a tenant of leased premises in the city of New York does not exceed a year's duration his oral agreement to surrender the unexpired term, to take effect in futuro, is valid under the Statute of Frauds. Supreme Court, November, 1919. [Vol. 109. Section 232 of the Real Property Law, as amended in 1918, is a new Statute of Frauds upon the subject of the creation of tenancies in the city of New York and does not apply to the surrender of an existing lease. Where the term of a lease of premises in the city of New York does not exceed one year it is no defense to an action upon the tenant's oral agreement to surrender the unexpired term, that the agreement was not in writing. CROSS-MOTIONS for judgment on the pleadings, consisting of complaint, answer and demurrer by plaintiff to separate defense, for insufficiency. Abraham A. Silberberg, for plaintiff. Mark E. Goldberg, for defendant. ERLANGER, J. For a separate defense to an action upon an agreement for surrender by the tenant of an unexpired term, not exceeding one year, under a lease of premises in the city of New York, the defendant alleges that the agreement was not in writing. The plaintiff demurs to this defense. A parol agreement to surrender an unexpired term of a lease, where the interest of the tenant thus surrendered is not to exceed a year's duration, is valid, although to take effect in futuro, under the provisions of the Statute of Frauds relating to the general subject of leases. Real Prop. Law, §§ 242, 259; Allen v. Devlin, 6 Bosw. 1,7; affd., 23 N. Y. 363. It is contended by the defendant, however, that the agreement of surrender must be in writing, where it affects property in the city of New York, by virtue of section 232 of the Real Property Law, as amended in the year 1918, which reads "An agreement for the occupation of real estate in the city of New York, shall create a tenancy from month to month, unless the duration of the occupation Misc.] Supreme Court, November, 1919. shall be specified in writing by the parties thereto or by their lawful agents." This statute, in terms, applies to the creation of a tenancy, not to its surrender, but the defendant points to the legislative policy that a parol surrender should be for a term no greater than may be created by parol, a policy indicated by the conformity of the general provisions of the Statute of Frauds with respect to the term which may be respectively created or surrendered without a writing. Real Prop. Law, §§ 242, 259. While the new statute certainly affects the creation of leases in this city, I find no ground for an implication that it relates to the subject of a surrender of a lease. It is no mere modification of the old Statute of Frauds; it provides a distinctly new rule, in that these leases in the city of New York must be signed by both parties, whereas the lessor only must subscribe, under the general requirements of the statute. It relates to one subject the creation of a tenancy - and treats it as a subject for new regulation. I cannot imply a legislative intent to read this new rule into the different subject of a surrender of a lease. As was said by the court in Berkowitz v. Iorizzo, 106 Misc. Rep. 489, upon the construction of this statute: "We think that the dissimilarity of the language employed in the act under discussion from that of the Statute of Frauds requires us to assume that in enacting the act in question, the legislature in no way modelled it after the Statute of Frauds; and it follows that our construction should be unaffected by the provisions or phraseology of the older statute." The legislature has made a new Statute of Frauds for the city of New York, upon the subject of the creation of tenancies. Souhami v. Brownstone, 189 App. Div. 1. Whether the old policy of the law on the Supreme Court, November, 1919. [Vol. 109. related matter of the surrender of tenancies is to be correspondingly changed, is a legislative question, not one for judicial determination. I conclude that the separate defense is insufficient in law, and that the plaintiff's motion for judgment upon the demurrer should be granted, with ten dollars costs. Defendant's motion denied, with ten dollars costs. Ordered accordingly. CLAUDIA T. WHEELER, Plaintiff, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant. (Supreme Court, New York Special Term, November, 1919.) Damages-unliquidated-replevin- judgments - trial-under takings-tender. Where a plaintiff recovers judgment for the return of certain chattels or their value as fixed at the trial, she is not bound to accept a tender of a part of the chattels and the value of such as were not returned. In an action upon undertakings given upon successive appeals from a judgment awarding plaintiff the possession of certain chattels or if a part thereof could not be obtained that she be paid their value, as fixed at the trial, she is entitled to recover damages for failure to deliver the part of the chattels which were not returned. Such damages being unliquidated, plaintiff was not bound to accept the defendant's valuation of the chattels not returned, for even if the amount tendered was sufficient, such tender of itself would neither satisfy the judgment nor defeat the cause of action for damages. ACTION to recover on undertakings given upon appeal. Goldstein & Goldstein (Jonah J. Goldstein, of counsel), for plaintiff. Misc.] Supreme Court, November, 1919. Platt & Field (Eli J. Blair, of counsel), for defendant. LEHMAN, J. The plaintiff has brought an action to recover upon bonds given upon successive appeals to the Appellate Division and the Court of Appeals from a judgment in favor of this plaintiff awarding to her the possession of certain chattels or if portion thereof could not be obtained that the said plaintiff be paid the sum of $12,500, the value thereof. The answer contains two separate defenses which contain essentially similar allegations to the effect that the party against whom judgment was entered had tendered to the plaintiff the articles adjudged to belong to her with the exception of certain articles of the combined value of $650, and had tendered to the plaintiff this amount together with the costs awarded on affirmance of the original judgment. There seems to be a great diversity of opinion upon the question of whether a party who has obtained a judgment for the return of chattels or their value as fixed at the trial is bound to accept a tender of part of the chattels and the value of such of the chattels as have not been returned. In the case of Kingsley v. Sauer, 17 Misc. Rep. 544, the court at Special Term decided that where a plaintiff had recovered a judgment for the possession of certain hay and if possession of that hay is not delivered the plaintiff recover the value of said chattel, viz., $80.85, the defendant cannot upon motion compel the plaintiff to accept part of the hay and the payment for any shortage or shrinkage. While there are no other decisions in this state upon this subject, and in some other jurisdictions that case has not been followed (see Leeper, Graves & Co. v. First National Bank, 26 Okla. 707, and cases there cited), its reasoning seems to me cogent, if not |