
    Edward Precht, Individually and as Executor, etc., of Eva Freund, Deceased, Plaintiff, v. Elizabeth S. Howard, Defendant.
    First Department,
    January 26, 1906.
    Contract — when contract to buy buildings erected by lessee is "without consideration— estoppel — no estoppel created-by mistake • as to questions of lg,wi
    When the original "lease of property," on which "the-lessee. covenanted to build, contains an agreement by- the lessor to renew or buy. the buildings erected, and when after several renewals, with similar terms, a lease is executed which.contáins no covenant to "renew or purchase the buildings, but expressly provides that said lease is given in full discharge‘of all covenants and agreements .contained - in the lease immediately preceding,, a subsequent contract by the lessor to grant a further-renewal or to purchase the buildings upon the mere nominal consideration of one dollar is without consideration and unen forcible by the lessee] or her assignee. The lessor, having a right to the buildings ¡it the expiration of the last renewal lease, is bargaining to-buy her own property, and hence her promise to pay therefor is without consideration.
    There is no estoppel under such contract, as the parties have been misled only as , to matters of law, and no rights-of either were invaded.
    Submission of a cbiit-rovery upon an. agreed .statement of facts ■ pursuant to section-TBTd of the Code of Civil Procedure.
    
      Edward Miehling, for the plaintiff.
    
      Lucius H. Beers, "for the defendant.
   Houghton, J.:

The plaintiff’s assignors leased from the defendant’s grantors on . the 1st d&y of November, 1836, the premises in question, for the . -period of twenty-one years, covenanting within two years from daté to erect thereon a specified kiftd of- dwelling house. The lease contained a covenant to renew at the end of the term for another period of twentyrone years or in. default to pay to. the lessee or assigns the" fair value of the building.

The dwelling house was erected and a second lease -executed for another term.of twenty-one years, the covenant being to renew' for another term of twenty-one years or .pay the fair value of the house. With respect, however, to the terms-of such further or third lease, the stipulation was as follows : “ Such new lease to contain the like covenants, provisoes, conditions and agreements as are ascertained in this present indenture except so far as regards a further renewal of this lease and the payment of the value of any house or building that may be erected or then be standing on said premises.”

, The third and last lease was given on. the 31st day of October, 1878, for the period of twenty-one years from '¡November first following, and contained no covenants of renewal nor any provision 'for the payment of the value 'of any buildings which might be standing on the premises at its expiration-. In addition-to the omission of this provision, this last lease recited that it was given in full discharge of all covenants and agreements contained in the lease immediately preceding it.

• On the 30th day of October, 1899, the defendant, the then owner of the fee, and the plaintiff and his "assignors, owners of the leasehold, executed a contract ..referring to the several leases and reciting that it was the mutual desire of the parties to extend the time in which the defendant “ has the right to exercise her option either to grant a further renewal for twenty-one years, or fbr the purchase of the house as is provided by the terms of the said lease, for a period df thirty days from the 1st day of ¡November, 1899, without prejudice of any rights to the parties hereto, under the terms of the said lease,” stipulating that the value of the buildings on the premises had been agreed to be $3,900, and providing in consideration of $1 and other good and valuable considerations in hand paid, that the defendant should pay that sum upon conveyance of said buildings to her by approved title on or before* December .1, 1899, at her option. The agreement further provided that defendant should go into immediate possession (which she did and collected the rents due for ¡November following) and that she should pay five per cent upon such stipulated sum up to the time of performance by com-eyance of the buildings, and that plaintiff and his assignors should free the premises from taxes as of ¡November 1,1899, and pay the semi-annual rent due that day as provided by the lease.

The plaintiff and' his assignors tendered a conveyance of the buildings, proper in form, and demanded payment of the $3,900, and the defendant refused to pay the same or accept the conveyance on the ground that the building was her own and did not belong to the tenants, and that her agreement to pay therefor was without consideration and not binding‘upon her. No consideration other than the nominal one specified in the agreement is claimed to have passed. Plaintiff, by assignment, holds all the. interests of all the tenants, and this submission is for the purpose of- determining whether or not he is entitled to recover the sum specified. We , think he is not. It is quite plain that the owners of the leasehold had no interest injhe building upon the premises on the expiration of the last lease. At the time the final lease was executed in 1878, the building had been erected forty years and over, and when its period of twenty-one years expired it would be more than sixty years old. The second lease foreshadowed that the building'standing on the land at the expiration of a third lease, if one should be given, would not belong to the owners of the leasehold ; and when the last lease was in fact given • no reservation was made, but it rather was expressly provided that at the end of the period the premises should be surrendered to the owner of the fee. The plaintiff’s assignors took the lease knowing they must so surrender the premises, and on its expiration they had no interest in the building which they could sell or convey, and from the plain reading of the lease we must assume they so understood the situation. Presumptively, buildings are part of the land and belong to its owner. (Talbot v. Cruger, 151 N. Y. 117.) Even where by agreement or operation of law a tenant has the right to remove fixtures, he must exercise that right during his lease or reserve it in any renewal or his right will be lost. (Stephens v. Ely, 162 N. Y. 79.)

The only embarassment- which arises is from the contract to" purchase the buildings which defendant executed. But we do not think shé is bound ‘by that. No consideration was in fact paid. She was barganing with respect to her own property.- Plaintiff’s assignors had nothing to sell. They surrendered nothing on the 30th of October, 1899, which they were not bound to give up on the first of November following, nor did they pay any rent they-were not bound to pay oh that day. The defendant by her acts did not place the plaintiff or his-assignors in aiiy different position than they already occupied. They had no rights in the building to preserve between the thirtieth of October and the first day of November, for they had no rights in it at all except to occupy it a day or two longer than they did. Nor was there any misleading, except as all were undcpubtedly misled as to their legal standing and rights. Hence, no estoppel arises against defendant’s position that her contract was without consideration because she contracted to buy property which in fact belonged to herself and to which the persons with whom she contracted had no title. Estoppel by act arises only where the acts are designed to and do in fact influence the opposite party to his injury if denied or withdrawn. (Payne v. Burnham, 62 N. Y. 69.)

The buildings on the premises owned by defendant belonged toller, and her agreement to pay for them was without consideration and is not binding upon her, and judgment must be directed in her favor, with costs.

O’Brien, P. J., Ingraham, Laughlin and Clarke, 3"J., concurred.

Judgment ordered for defendant, with costs.  