
    Alfred M. Bedell and Walter E. Bedell, Respondents, v. James W. Edgett and Others, Appellants, Impleaded with Others.
    Second Department,
    June 7, 1907.
    Landlord and tenant— covenant to let premises when vacant ---pleading — failure, to allege condition precedent.
    A lessee occupying part of a building under a lease which provides that in case a smaller store on the same premises now occupied by another tenant “ shall at any time become vacant ” the lessor will rent the same to the lessee, in order to ' .maintain an action for the- specific performance of said covenant must allege that the store has been “vacated” by the other tenant. A complaint which merely alleges that the cotenant’s term has expired but that he is still in occupancy fails to state a cause of action.
    Premises to be vacated must be unfilled and unoccupied, without a claimant,. tenant or occupier, and the mere termination of a lease does not necessarily create a vacancy.
    Appeal by the defendants, James W. Edgett and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 9th day of October, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendants’, demurrer to the complaint.
    
      John J. Kuhn, for the appellants.
    
      A. D. Peake, for the respondents.
   Jenks, J.:

The appeal is from an interlocutory judgment overruling the defendants’ demurrer that the complaint does not state facts sufficient to constitute a cause of action. The action is to compel the defendants to execute and to deliver a lease in accord with a covenant in a lease between the parties, providing for a lease of an additional part of the premises. I think that the plaintiffs do not plead the existenée of the condition precedent to the covenant to offer to them the smaller shop for rent. The condition is, In case the smaller store" of said premises now occupied by a dealer in hair goods shall at any time become vacant, the lessors will, rent the same to the lessees,” etc. The pleading is “ That at the date of said lease the defendant, Harry Jacobs, was in tlie occupancy of that portion of the first or store floor of said building described in said'lease as ‘the smaller store of said premises occupied by a dealer in hair goods,’ under a lease thereof, which- by its terms expired May 1,1906, and.is still in the occupancy thereof, and is now so occupying without the consent and against -the protests of these plaintiffs, and is the identical person described in said lease as a dealer in hair goods.”

If the allegation suffice it must be for the reason that the condition precedent meant that upon the expiry of the léase to Jacobs the plaintiffs might receive a lease of the premises occupied by him. If such was the meaning of the parties, there is no apparent reason why "they should not have expressed it in plain words.' As it is not thus expressed", it is incumbent on the plaintiffs to show that the condition as expressed has such meaning. Vacant means “ unfilled, unoccupied without a claimant, tenant or occupier.” “'A house was -said vacare which was inhabited by no one,” (Burrill Law Dict. 1019.) A vacant house is an untenanted house. (Anderson Law Diet, 1078.) Vacant is unoccupied. (Standard Diet.) “Not occupied or filled with an incumbent or tenant.” .(Century Dict.) The termination of the lease might result in the shops becoming vacant. The tenant at the end of his term, may be required to vacate. (Excelsior Steam Power Co. v. Halsted, 5 App. Div. 121.) But the premises are not vacant if the tenant remain after the end of the term named in the lease under which he entered into possession. But it may well be that the hairdresser had the right of .renewal or that he remained and remains in occupancy as a hold-over. The law will not presume that he is a trespasser upon vacant premises. The lessors might have been willing to lease the premises in case they became vacant and yet unwilling to end the tenancy of the hairdresser upon the termination of his existing lease.. •• In one case they would obtain" a tenant for vacant premises, in the other they must cast out an old tenant simply to gain a new one. On the other hand, the lessees might have been content with the first right to take • the premises if they became vacant in order to protect their business and to avoid competition nearby. I find evidence of this in the provision of the lease which reads: '“ It is further agreed that if said stores or either of - them become vacant during the term of this lease and the lessees elect not to take possession of them as herein provided, then and in that case the lessors shall not rent either of said stores for the .purpose of, nor permit the same to be occupied for the manufacture or sale of cloaks or suits.” . .

It. is the function of the court to construe the agreement as written, not to make a new agreement by construction. In Schoonmaker v. Hoyt (148 N. Y. 425) the court say: “In the construction of contracts or statutes the intention of the parties or Legislature is to be sought in the words and language employed, and if the words are free from ambiguity and express plainly the purpose of the instrument, there is no occasion for interpretation. Contracts or statutes are to be read arid understood according to the natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. Courts cannot correct suspected errors, omissions or defects, or by construction vary the contracts of parties. If the words employed convey a definite meaning and there is no contradiction or ambiguity, in- the different parts of the same instrument, then the apparent meaning of the instrument must be regarded as the one intended. (McCluskey v. Cromwell, 11 N. Y. 593, 601; Johnson v. Hudson River R. R. Co., 49 N. Y. 455,462; Benton v. Wickwire, 54 N. Y. 226.) ” Powell says : “ The signs of,the intentions of men are to two sorts, namely, words and actions. As to positive words the rule seems to be that, unless there be the most decisive reasons wliieh lead us to conjecture the intent was. otherwise, they are to be understood in their proper and most known signification. Hot the grammatical one, which regard's the etymology and original of them, but that which is vulgar and most in use ; for use is the judge, the law and the rule of speech.” (Powell on Contracts, p. 225.) Parsons says : The object of interpretation and construction is to find the intention of the parties, and surely that intention is best sought by affixing to the words of an instrument such meanings as are common or ordinary.” (2 Pars. Cont. [9th ed.] 501, note t.) So Kent says:' “ The bulk of mankind act and deal with great simplicity,” and words are to be taken in their popular and ordinary meaning,,unless some good reason be assigned to-show that they -should be understood in a different sense.” . (2 Kent. Comm. 555.) In Herrman v. Merchants' Ins. Co., 81 N. Y. 184, tlie subject for construction was-a condition in á fire insurance policy that the policy should be void if the premises became. “ vacant- and unoccupied.” Eael, J., said: “ Here we have the two words joined together, vacant and unoccupied; ’ and what do they mean 2 They should not be. taken in any technical or narrow sense. They' need not be taken in the sense in which they -may have been understood by underwriters, as both parties, to this contract were not underwriters, supposed to be familiar with the meaning of such "words when used-in the business of fire insurance.. ■ But they- must..be taken in their ordinary sense, as commonly used and understood. * “ * We must endeavor to ascertain, how the insured undeiv stood and could properly understand them — in .other words,. the meaning which they convey to the common mind.” These expressions are collated in a valuable note-in Jones on Construction of Contracts (§ 200, n. 2), where many other authorities will be found. It seems to me thatu There is no room, for doubt or question as to the meaning and intent of the language employed, and, therefore,-no room for construction. The apparent meaning must be regarded as the intended one.” (Christopher St. R. Co. v. 23d St. R. Co., 14 N. Y. 51.)

The interlocutory judgment must be reversed, with costs, and the demurrer must be sustained, with costs.

Hirsohbebg,- E. J., Woodavaed, ' Gaynor and -Miller, JJ.,concurred.

Interlocutory judgment overruling demurrers reversed, with one ■bill of costs, with leave to plaintiffs to plead anew on payment..  