
    The Howe’s Cave Association, App’lt, v. Peter Houck, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    Lease—Construction.
    A ten years lease of land contained the provision that the lessor “ may at its option continue this lease for another term of ten years to the lessee, but if the lessor shall decline so to continue the lease, then it shall be held liable to pay the lessee the value of the buildings erected thereon/' The tenant built a store upon the lot and at its expiration the lease was extended “as provided herein.” The time of the extension about expiring, the tenant was about to remove the building, when the landlord brought an action to restrain such removal. Held, that such provision did not directly or indirectly effect a conveyance of the building to the.landlord, in case the lease was extended, and that the tenant was entitled to remove it.
    (Herrick, J., dissents.)
    Appeal from a judgment for defendant, rendered after a trial at the Schoharie circuit, by the court without a jury.
    Action to determine the ownership of certain buildings standing upon premises leased by plaintiff, and the right of possession of the same by the plaintiff after the expiration of the lease, and to perpetually restrain the defendant from removing the same from said premises.
    
      J. G. Runkle (William C. Lamont, of counsel), for app’lt; J. S. Pindar (G. M. Palmer, of counsel), for resp’t.
   Putnam, J.

The plaintiff on May 13, 1869, by written lease -demised to defendant’s assignor the lot described in the complaint for ten 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 ten years to the fi 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 ten years the lease was extended by a writing endorsed 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. Ramsey, President.

“ J. F. Tan Wagenen.”

The ten years for which said lease was extended being about to-expire, and 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 ten years, and then by the consent of the lessor and lessee extended for a further term of ten years. The rights of the parties, therefore, are the same as if the instrument had been originally drawn for twenty 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 ten 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 ten 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 tc 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 title thereto to the plaintiff. If the intent of the parties had been as claimed by appellant, the lease would have provided that “such payment so mad of or extension of the lease, 'shall entitle the party of the first part to the buildings. In the absence of such a provision, I am unable to see,how the clause above quoted can be construed to have the effect of transferring the buildings in question to the plaintiff

The lease provided for a renewal, but in the event of the landlord declining to renew it is obliged to buy the building, and the instrument provided that its payment therefor shall entitle it to the building. Hot the payment or extension of the lease. I think in the absence of a provision in the instrument providing that an extension of the lease shall transfer the building to the plaintiff, such building being erected for the purposes of trade, the ownership remained in the lessee.

This case differs from those, some of which are cited by appellant, where the tenant in the lease and in consideration thereof covenants to erect buildings on the premises, by the terms of the lease is compelled to do so. In such a case the buildings so erected have been held to belong to the landlord. - The building, where such an agreement is contained in the lease may be deemed (so to speak) as an additional rent, and hence the property of the lessor. I have examined the authorities cited by the plaintiff, but I do not think that they are applicable to this case or require discussion.

The disposition of the question under consideration depends on the construction given to the clause of the lease above quoted, in the absence of which defendant’s right to the store in question is clear. I am unable to construe that clause, the lease having been renewed, as conveying or showing an intent to convey title to plaintiff.

I think the judgment should be affirmed, with costs.

Math am, P. J., concurs ; Herrick, J., dissents.  