The effect which the
What the parties meant by the language employed was, that if the plaintiff did not, at the expiration of the first lease, give a second one for twenty-one years, they should pay for the iw-story building, for the"erection of which provisions had been made, and that if a dwelling-house of three or more stories in height should be erected and be standing at the expiration of the second lease, they should give a further lease for twenty-one years or pay for that dwelling-house.
It was, in the first place, provided in the original instrument, that if the tenant should, within the first seven years, of the term, or if the plaintiffs should consent thereto in writing then at any time during the residue of the term, erect a good and substantial house of brick or stone, or one with a brick or stone front, which should be two stories or more in height, the plaintiffs should either pay the just and full" value of that building or give a second lease for the like term of twenty-one years. In the second place, it was provided that if, instead of paying for the building, the plaintiffs should elect to give a further lease for twenty-one years, that then the new lease should contain the like covenants, conditions and provisions as the first lease, except so far as regarded a further renewal of the first lease, and the payment of the value of any house or building that might be erected ;—for the obvious reason that in the event of the plaintiffs determining to give a new lease,
This is, I think, the plain meaning of these provisions in the original lease. They provide for the contingency of two renewals and no more, neither of which, however, was obligatory upon the plaintiffs, they having the option to pay for the iwo-story house instead of giving the first renewal, or to pay for the three-story dwelling-house instead of giving the second renewal—the parties having entered into these covenants in contemplation of the existence of the first of these structures at the end of twenty-one years, or of the existence of the other at the end of forty-two years, if the original lease was renewed. There is no reference to a third renewal, nor anything in the language from which it can be inferred that it was contemplated by either party. The first provision is for a renewal of the term “ hereby demised,” which is a renewal of the original lease, for a further term of twenty-one years; and the next provision is for a further renewal of the said lease for a term of twenty-one years '■‘•from and after the expiration of the said second term.” That is all there is in respect to renewals, and I wholly fail to see how it is possible to make out of this language an obligation, as Judge Robinson holds, to give a lease .absolutely for a third term
The defendant claims that the use of the words “ in all cases,” shows that there was to be a renewal for a fourth term or else the payment for the three-story dwelling-house. The language of this part of the first lease is “ providing ” (that is, providing in the second lease), “ for the further renewal of the said lease, &c., * * for the further and like term of twenty-one years, from and after the expiration of the said second term, &c., &c., * * * in all cases in which there shall have been erected during the term hereby demised, and shall then be standing on the said demised premises, a good and substantial dwelling-house, being three or more stories in height,” &c., &c. * * * It is not very clear what the parties meant in this conveyance by the words 11 in all cases; ” but the obscurity is not cleared up by the construction which the defendant puts upon the words. My interpretation is that what was meant by them was—in all cases—whether a tliree-story dwelling-house, as specified, is erected during the first term instead of the two-story house, or if a two-story house has been erected during the first term and a three-story dwelling-house is afterwards erected during the second term, and that dwelling-house is standing at the end of the second term; then the plaintiff shall either pay for that dwelling-house or give a lease for a third term of twenty-one years.
The tenant was not restricted to the putting up of a two-story house during the first term. The words were “ a house of two or more stories,” so that he might put up one of three stories or more; nor was he restricted as to the kind of house, except that it was to be of brick or stone, or with a brick front, and he was consequently at liberty, if he thought proper to do so, to put up, during the first term', a dwelling-house of three stories or more in all respects conforming to the law respecting buildings upon Broadway south of Canal street, and if he had done so the plaintiffs, at the end of the first term, would have been equally bound to pay for it or
For these reasons I am of opinion that the judgment upon the demurrer should be reversed.
Van Hoesen, J., concurred.
Judgment reversed.