21 N.Y.S. 40 | N.Y. Sup. Ct. | 1892
The plaintiff, on May 13, Í869, by written lease, demised to defendant’s assignor the lot described in the complaint for 10 years; the lease containing the following clause, viz.:
“It is also expressly stipulated and agreed between the parties hereto that the party of the first part, or their assigns, may, at their option, continue this lease for another term of 10 years to the party of the second part, his heirs or assigns; but if the said party of the first part, or their assigns, shall decline to so continue the lease, then the said party of the first part, or their assigns, shall be held liable to pay the said party of the second part, his heirs, executors, administrators, or assigns, the value of the buildings which shall be upon the premises at that time, which value shall be determined by competent mechanics, and such payment, so made, shall entitle the party of the first part, or their assigns, to said buildings, forever. ”
The lessee afterwards erected buildings on said premises for the purposes of trade. The lease contained no covenant obliging him so to do. At the end of the 10 .years the lease was extended by a writing indorsed thereon, signed by the plaintiff and' defendant’s assignor, as follows, viz.:
“It is hereby mutually agreed, in consideration within mentioned, to extend the time of this lease ten years in addition, as provided herein.
“Dated May 1, 1879. The Howe’s Cave Association.
“ J. H. Bamdey, President.
“J. F. Van Wagenen.”
The 10 years for which said lease was extended being about to expire, ana defendant, the assignee of Van Wagenen, the lessee, being about to remove the buildings which were so erected on the premises, this action was commenced to restrain such removal. Ordinarily a building erected by a tenant on demised premises for the purpose of trade may be removed by him at the expiration of his term. Ombony v. Jones, 19 N. Y. 234; Holmes v. Tremper, 20 Johns. 29; Mott v. Palmer, 1 N. Y. 570. The lease in question was given for 10 years, and then by the consent of the lessor and lessee extended for a further term of 10 years. The rights of the parties, therefore, are the same as if the instrument had been originally drawn for 20 years; and no question would arise as to the right of the defendant, as assignee, to remove the store erected on the premises, were it not for the clause in the lease above set out, whereby plaintiff covenants, at the end of the first 10 years, to pay for the buildings or extend the lease. But the covenant in question is one merely obliging the lessor to extend the lease 10 years, or buy the buildings placed on the premises by the lessee. It does not directly or impliedly effect a conveyance of such erections from the tenant to the landlord in case the lease is extended. It provides that the payment by the lessor to the lessee of the value of the buildings shall transfer the
MAYHAM, P. J., concurs. HERRICK, J., dissents.