
    HOWE'S CAVE ASS'N v. HOUCK.
    (Supreme Court, General Term, Third Department.
    November 22, 1892.)
    Lease—Renewal—Trade Fixtures. A lease contained a clause that at its termination the lessor was to renew the same, or pay to the lessee the value of any buildings the lessee might erect thereon. At its termination, it was renewed. Held, that the covenant in this clause does not effect, by virtue of such renewal, a conveyance to the lessor of the buildings erected thereon by the lessee for the purposes of trade, but that such buildings are the property of the lessee, and may be removed by him. Herrick, J., dissenting.
    Appeal from special term, Schoharie county.
    
      Action by Howe’s Cave Association against Peter Houck to determine the ownership and title of certain buildings standing upon premises leased by plaintiff, and to restrain the defendant from removing the same from said premises. From a judgment for defendant, plaintiff appeals. Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    J. C. Runkle, (William C. Lamont, of counsel,) for appellant.
    J. S. Pindar, (C. M. Palmer, of counsel,) for respondent.
   PUTNAM, J.

The plaintiff, on May 13, Í869, by written lease, demised to defendant’s assignor the lot described in the complaint for 10 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 10 years to the 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 10 .years the lease was extended by a writing indorsed 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. Bamdey, President.
“J. F. Van Wagenen.”

The 10 years for which said lease was extended being about to expire, ana 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 10 years, and then by the consent of the lessor and lessee extended for a further term of 10 years. The rights of the parties, therefore, are the same as if the instrument had been originally drawn for 20 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 10 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 10 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 to 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 made, ” 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, not 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 th.e 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.

MAYHAM, P. J., concurs. HERRICK, J., dissents.  