Section 758 abrogated the old rule holding that the death of a joint obligor discharged his liability. ( Polhemus Printing Co. v. Wynkoop, 30 App. Div. 524.) We are satisfied that the contention of the defendant Dounce that he could not be joined as a defendant in this action is not sustained by the authorities.
The defenses are, in substance: First, that the plaintiff relieved the defendant of liability on the bond or of the obligation to procure a sub-lease because, without the consent of the defendant or of Wynkoop Hallenbeck, and of its own volition, it negotiated with the owners of the premises and secured a new lease; second, that the plaintiff so interfered with Wynkoop Hallenbeck in their negotiations with the owners of the premises as to prevent that firm from securing a renewal of the lease, pursuant to their contract with the plaintiff. We do not find that the case differs in any essential feature from the condition in which it stood when it came before us on a former appeal ( 30 App. Div. 524). The same questions are discussed and upon substantially the same proofs. We held upon the former appeal and now hold, that the bond upon which the plaintiff's cause of action arises must be construed in connection with the lease from Wynkoop Hallenbeck to the plaintiff.
Defendant cannot escape liability upon his covenant merely because he has been compelled to pay an increased rent or to submit to more onerous conditions. ( Robinson v. Beard, 140 N.Y. 107, 113; Polhemus Printing Co. v. Wynkoop, 30 A.D. 524; Hausauer v. Dahlman, 18 id. 475; affd., 163 N.Y. 567; 24 Cyc. 997.) "The only way by which the obligation of such a covenant can be escaped is by the covenantor's abandonment of the estate, without a direct or indirect renewal of his own tenancy."