Leary v. Hutton — 35 N.Y. St. Rep. 773

Majority

p. 773

Charles C. Leary, Adm’r, et al., Pl’ffs, v. Henrietta Hutton et al., Def'ts.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

Lease—Covenants fob benewal.

A lease of land for years contained a covenant that upon its expiration the lessor would pay for the buildings upon the land or grant a renewal lease containing Úke covenants. Two renewals were made, each lease containing the same provisions as to payment for the buildings and that the renewal lease should be similar to the present one. Held, that but one renewal was provided for and that the lessees were not entitled to have a covenant for renewal inserted in the new lease.

(Muhlenbrinck v. Pooler, 40 Hun, 536 ; 1 N. Y. State Rep., 333, followed.)

Submission of controversy upon agreed facts.

E. L. Fancher, for pl’ffs; J. L. Cadwalader, for def’ts.

A large number of facts are inserted in the submission which it is riot necessary to advert to in the view which we take of one of the questions presented upon this submission.

p. 774

The question in difference is whether, as is claimed by the plaintiffs, on the expiration of a lease dated July 15, 1874, for fourteen years the plaintiff was entitled to have inserted in the renewal lease a covenant such as is contained in the former lease requiring the lessors prior to the expiration of the term to pay to the lessees the value of thé buildings or warehouses erected by them on the premises unless the lessors should choose to grant a further lease with like covenants.

It appears that in 1839 a lease was made of the premises in question to persons of whom the plaintiffs are the successors in' interest for seven years from March 1,1840, which lease provided that before the 1st December, 1845, the value of any buildings or warehouses erected thereon should be ascertained by sworn appraisers, and in case the lessor failed to pay to the lessees the amount of the valuation, the lessor would grant a renewal lease for the further term of fourteen years at stick annual rental as should be agreed on, not less than the present rent, and in case of failure to agree the lease provided for an arbitration.

In the year 1847, a renewal lease for fourteen years was made at the same rental containing similar covenants as the original lease, including covenants as to payment for the buildings or renewal. The first renewal expired in 1861, and thereupon a new lease was executed for fourteen years from May 1, 1861, at the same rent, containing the same covenants for renewal or payment for buildings, and also a clause that the renewal lease should contain like covenants with the lease then made. The third renewal was given in June, 1874, containing similar covenants of appraisal and of renewal in default of payment for the buildings. It also contained the usual general covenant that the form of the new lease should be similar to the present lease. When the lease of 1874 was approaching termination, the plaintiffs, the representatives of the original lessee, demanded a renewal of the lease with a " further covenant of -renewal, or, in default thereof, a covenant to pay for the buildings.

The question presented is whether the plaintiffs were entitled to a lease containing such covenants of renewal.

It is urged upon the part of the defendants that the right to such a lease would be equivalent to a right of perpetual grant. Upon the other hand, it is claimed by the plaintiffs that their construction does not provide for such perpetual grant, because such lease gives the lessors the option of granting an additional term or not at their pleasure. If they choose not to grant the additional" term, they must pay for the buildings according to the contract.

It does not seem necessary to discuss the questions raised by the foregoing facts. In the case of Muhlenbrinck v. Pooler, 40 Hun, 526 ; 1 N. T. State Rep., 223, the identical question seems to have been determined against the contention of the plaintiffs. In that case the lease provided that the lessees should erect upon the premises brick dwelling houses, and that upon the expiration of the term the lessor would either pay to him, his heirs, executors, administrators or assigns the just and full value of the buildings or such of them as should remain on the premises, or would grant

p. 775

to him. or them a new lease for a further term of fourteen years at a rent to be agreed upon by the parties or to be determined by appraisers. It then declares that “ the new lease shall contain covenants, conditions and agreements the same as those herein contained.” It was held that but one renewal was provided for, and that the new lease need not contain a covenant for renewal.

The principles enunciated in this case seem to be adverse to the contention of the plaintiffs, and as it is impossible to distinguish the facts in that case from those in the case at bar, it must be considered as a controlling authority.

Judgment should be ordered in favor of the defendants, with costs.

Daniels and Brady, JJ., concur.