
    Frank Chamberlain, Resp’t, v. Robert Dunlop, Ex’r, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 10, 1891.)
    
    1. Lease—Extension oe.
    Where a lessee has a right to have the term of a lease extended by-giving notice of his election, the force of such a notice is not impaired because, in such notice, after stating his election to have the lease extended, he also proposes a modification of its terms with a view to a further extension.
    2, Same—Surrender.
    While the acceptance of a new lease by a tenant during the term of a former one implies a surrender, by operation of law, of the old lease, there must be a valid acceptance of the new lease, and where there was an agreement providing for the conveyance of the whole interest to the tenant and the parties failed to convey all- of such interest, and the tenant never accepted such lease with knowledge that it did not fulfill the terms of the agreement, and there was never any entry under the lease, and before the time arrived at which the lesse, by its terms, was to become operative the property had been destroyed by fire, the original lease remains in full force.
    
      3. Same. 
    
    An executor is bound to carry out an agreement made by his testator with a tenant to rebuild in case the building is destroyed by Are.
    4. Same—Expert testimony—Architect.
    The testimony of an architect is admissible to show the time it should take to do certain work, and whether such work could be done in a" certain time without dangerous haste.
    Appeal from judgment of the supreme court, general term,, third department, modifying and affirming a judgment in favor of plaintiff entered upon the report of a referee.
    
      Burdick é Burdick, for app’lt; Isaac Lawson, for resp’t '
    
      
       Affirming 28 N. Y. State Rep., 375.
    
   Peckham, J.

None of the grounds argued by the counsel for defendant is sufficient to call for a reversal of this

(1) The lease was properly extended in the manner provided for by its terms and was recognized as a valid and existing lease up to the death of the testator, at which time nearly one-half of the extended period had expired.

The lease provided for an extension of its term by two years, provided the lessee, three months before the expiration of the original five years, gave a written notice to the lessor of his desire to extend the lease for that further period. This the lessee did. Because he made a suggestion in that notice, that if the lessor chose they would regard the lease as extended two years and a half, had no bearing upon the sufficiency of the written notice, and the refusal of the lessor to grant the extra six months extension acknowledged the right of the lessee to the two years provided for by the lease itself.

(2) The lessee of the original lease never either iii fact or in law surrendered it by reason of what took place in regard to the execution of the lease by Wallace on the part of the. heirs-at-law. The facts show there were a widow and several heirs-at-law., and that the widow had a right of dower in the premises, and that one of the heirs-at-law at the time of the execution of the lease by Wallace, as the agent of the heirs, was an infant. The lease purported to grant the interest of the heirs in the premises from the first of the coming May, for five years. The evidence is uncontradicted that the agreement between plaintiff and Mr. Wallace was that the plaintiff should have all the interest of all the parties in the premises for the five years, and that when the plaintiff executed the lease he had no personal knowledge as to who succeeded to the interest of Robert Dunlop, and he supposed that the lease covered the interest of all parties having an interest in the premises.

It is also in proof and found by the referee that the widow had a right of dower in the premises. She did not sign the lease and neither her interest nor the interest of the infant passed under it. The very day the lease was received, signed by Wallace as agent, the fire occurred. It is obvious that the plaintiff did not secure by the lease the interest which he had provided for by his agreement with Mr. Wallace. The dower of the widow was outstanding and the interest of the infant was not affected by the lease. ■The original lease was not surrendered for the reason that the new one did not give plaintiff the interest he contracted for and which he thought he was acquiring. Under such facts the cases hold there is no surrender. Whitney v. Meyers, 1 Duer, 271; Schieffelin v. Carpenter, 15 Wend., 405; Coe v. Hobby, 72 N. Y., 146.

This is not the case of a lease of one tenant in common to a stranger, purporting to convey the whole interest in the land, and an entry by the lessee under it, and an acquiescence by all the other tenants in common. There was never a valid acceptance of the new lease. The agreement provided for the conveyance of the whole interest to the plaintiff and the parties failed to convey all of such interest, and the plaintiff never accepted such lease with knowledge that it did not fulfil the terms of the agreement, and there was never any entry under the lease, and before the time arrived at which the lease by its terms was to become operative, the property was not in existence, having been destroyed byofire. Hence the original lease remained in full force.

(3.) The defendants moved for a non-suit upon the grounds, among others, that the executor had no power to rebuild and no control over the heirs at law to make them rebuild, and also because on the death of the lessor the plaintiff paid rent to, and held under the heirs at law, and not under the defendant executor. There is no finding by the referee as to the last alleged fact, and the evidence does npt show that such is necessarily the fact. It rather shows the contrary. As to the first ground, that the executor had no power to rebuild, I think the authorities are clearly the other way.

The presumption is that the party making a contract intends to bind his executors and administrators, unless the contract is of that nature which calls for some personal quality of the testator, or the words of the contract are such that it is plain no presumption of the kind can be indulged in. Tremeene v. Morison, 1 Bing. N. C., 89; Reid v. Tenterden, 4 Tyrwhitts, 111; Kernochan v. Murray, 111 N. Y., 306; 19 N. Y. State Rep., 491.

Where a party has entered into a contract to purchase real estate and dies before it is conveyed to him and before he has paid for it, his heir or devisee is entitled to have his executor pay for the realty out of the personal estate. Broome v. Monck, 10 Ves., 596, 611; Re-argued, 619; Livingston v. Newkirk, 3 John. Ch., 312; Wright v. Holbrook, 32 N. Y., 587; 1 Sugden on Pow., 293, 8th Am. ed.; 3 Red. on Wills (2d ed.), 302, § 11.

The executor is not permitted to violate the contract of his testator after the latter’s death. Wentworth v. Cock, 10 Ad. & El., 42; Siboni v. Kirkman, 1 M. & W., 419; remark of Parke, B.

In Quick v. Ludburrow, 3 Bulst., 30, Lord Coke said that if a man be bound to build a house for another before such a time, and he which is bound dies before the time, his executors are bound to perform this. To same effect Tilney v. Norris, 1 Ld. Raym., 553; Tremeene v. Morison and Reid v. Tenterden, supra. If the testator devise his land to other parties, the executor still remains liable on the covenant of his testator. If the devisees do not permit the executor to build, the covenant is broken, and it is the act of the devisor in devising his property thus that prevents the executor from fulfilling.

If the land descend to the heir, then the covenant still remains in force, and if it should be that the executor could not force the heir to permit the building, still the estate is liable on the covenant, and the executor must pay the damages if he have assets. The judgment here is. only against him as executor, and is fully warranted in law.

(4.) The exceptions to the rulings of the referee in the admission or rejection of evidence are not tenable. The value of the lease for the time the plaintiff would have been in possession after the premises were rebuilt and before the lease had expired, was properly testified to by the plaintiff. It was a matter of opinion to some extent, based upon facts, all of which he had testified to, and his experience and knowledge were more than that of any othSr person in regard to the very question which was asked. The evidence of Fleischman was properly admitted. He was an architect and to some extent, therefore, familiar with building and the time it should take to do certain, work, and with the fact whether the work could be done in a certain time without dangerous haste.

We are unable to find any fair reason for disturbing this judgment, and it should be affirmed, with costs.

All concur.  