81 N.Y.S. 1058 | N.Y. App. Div. | 1903
Lead Opinion
On April 1, 1898, the plaintiff leased of the defendant certain premises in the borough of Brooklyn for the term of five years from that day. His complaint alleges that he made the alterations and additions mentioned in the lease, which by the terms thereof were to become the property of the defendant at the end of the five-year term if the plaintiff asked for no renewal, and .were to become her property absolutely at the end of the five-year renewal. The material provisions of the instrument are as follows : “ It is further expressly understood and agreed between the parties hereto that the parties
“It is further expressly understood and agreed that the party hereto of the second part will erect a new pavilion on the rear and side of the hotel, now on the said demised premises, and an extension over the kitchen thereof, in addition thereto, which said erections and buildings shall be and remain the property of the party of the second part, except that on the expiration of the two terms of five years the said pavilion and extensions shall be and become the property of the party of the first part; and the party of the second part shall not remove the same after erecting the same during- the continuation of said lease.
“ In case it should happen that the party of the first part cannot for any reason legally gi ve, or refuses to give to the party of the second part an extension of this lease for fice years as hereinbefore provided, then and in that case, the party of the first part, will pay the said party of the second part a fair and reasonable value for the said extension and pavilion so erected by him. * * *.”
Because of the statute covering lettings by trustees, the defendant would have been required to obtain the permission of the Supreme Court to a renewal of the lease, and had no power to do so without such permission.
Within a year prior to the expiration of the lease plaintiff made his demand in writing, but was met by a refusal to institute proceedings in the Supreme Court, or to enter into a lease, and he brought this action asking the court to decree a specific performance. The defendant’s demurrer to the complaint was sustained, and plaintiff appeals.
Plaintiff’s claim is that the paragraph of the lease which is first quoted above must be construed as an option to the plaintiff for a renewal of the lease for an additional term of five years, upon terms
Sic.
Dissenting Opinion
If as, Mr. Justice Hooker holds, there was an option as to renewal in each of the parties to the lease, the bulk of the language becomes mere verbiage, and what he calls “ the seemingly positive and unequivocal agreement to renew ” proves a nullity. That agreement, as appears from the record, forms a distinct and separate paragraph with its introductory words capitalized, as follows: “ IT IS FURTHER EXPRESSLY UNDERSTOOD AND AGREED.” The paragraph immediately following this agreement has the same capitalized introduction and relates to new buildings which the lessee undertook to erect on the demised premises and which were to remain his property, “except that on the expiration of the two terms of five years ” the buildings were to become the property of the lessor. Then follows the paragraph which creates the ambiguity and gives rise to this litigation. It is the only paragraph in the lease without introductory capitals and, as shown in the record, contains no italics.
In construing deeds and other instruments the lawful intention of the parties is to he effectuated, and, if the language is ambiguous.
Where the language of an instrument is susceptible of two constructions, one of which will render it valid and the other invalid, the former will be adopted. (Post v. Hover, 33 N. Y. 593; Coyne v. Weaver, 84 id. 386; People ex rel. Myers v. Storms, 97 id. 364.) Every uncertainty is to be taken in favor of the grantee. (Jackson v. Blodget, 16 Johns. 172; Clover v. Shields, 32 Barb. 374.) And it has been repeatedly held in this State that, in case of doubt, the. lease should be construed most favorably to the lessee. (Loeser v. Liebmann, 39 N. Y. St. Repr. 12; Broadway & Seventh Avenue R. R. Co. v. Metzger, 27 Abb. N. C. 160; Windsor Hotel Co. v. Hawk, 49 How. Pr. 257.)
It cannot be denied that this lease is ambiguous. Our duty is to construe it, and cases where the renewal was clearly optional in the lessor are not in point. Reading the whole instrument and taking into consideration the attendant circumstances I am of opinion that when the parties incorporated in the lease this clear and unequivocal agreement to relet or make a bona fide application to the Supreme Court for leave to do so, they did this for a purpose evidenced by the unmistakable language of the paragraph, and we cannot effectuate their intent by determining that the agreement to renew is a mere nullity. Such a determination exaggerates the importance of a minor and subsequent paragraph introduced to provide for the contingency of the court’s refusal to allow a renewal, a paragraph which, upon this question of option, should be regarded as surplus-age. The agreement to renew amounts to a covenant without an option, and no case has been cited, nor have I been able to find any, where subsequent language inconsistent with such a covenant has been held to overthrow it.
For these reasons I think the judgment should be reversed.
Judgment affirmed, with costs.
Concurrence Opinion
The lease in question contains an additional clause beyond that quoted in Mr. Justice Hooker’s opinion which has some significance, viz.: “ If, however, the party of the second part should refuse to enter into the said extension of this lease for five years as aforesaid, then and in that case the said pavilion and extension, at the expiration of the term of this lease on April 1st, 1903, shall be and become the property of the party of the first part hereto.” It thus appears that the lease confers on each party the right of refusing the renewal. If the landlord refuses to renew, she must pay for the buildings erected by the tenant. If the tenant refuses to renew, he forfeits the buildings. It is not a case for specific performance, if for no other reason because refusal is specific performance.
Bartlett and Jenks, JJ., concurred; Woodward, J., read for reversal.