[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 395 We think that the facts found by the referee have sufficient support in the evidence to prevent interference by this court after affirmance by the General Term. (White v. Benjamin,150 N.Y. 258.) Upon those facts as the basis of adjudication, we are of the opinion that the plaintiff was not entitled to any relief, and that the complaint was properly dismissed for the reasons given by the referee and the General Term.
To the extent, however, that the judgments below awarded affirmative relief to the defendant by requiring "the plaintiff to execute and deliver" to him "a lease of the premises" in question, we think they are erroneous. The lease, so far as it relates to the subject of renewal, contains mutual covenants for an appraisal and a separate covenant by the lessor to renew the lease or pay for the building at his election, but no covenant on the part of the lessee to accept a new lease if tendered. Her covenant to surrender possession at the end of the term was absolute, and not in the alternative to surrender possession or take a renewal lease. She was not bound to accept a new lease, but had the option to accept one in case the lessor did not take advantage of his right to pay for the building. The lessor was bound, after a valid appraisal, to elect to purchase or to renew, but when he had made his election the lessee was not bound to accept the offer on his part in either form because she had not agreed to. If he elected to purchase, self-interest would, doubtless, induce her to accept the money, but if he elected to renew the lease she might prefer to decline it, as the rent might be so high that she would rather lose her building than agree to pay it for the long period named. His express covenant to grant her a new lease was met by no corresponding covenant on her part, either express or implied, to accept it. He was obliged to make her one of two offers, but she was not obliged to accept either *Page 398 offer when made, for a covenant will not be implied unless it clearly appears from the words used that one was intended. (Booth v. Cleveland Rolling Mill Co., 74 N.Y. 15; HudsonCanal Co. v. Penn. Coal Co., 8 Wall. 276.) When it is apparent that the parties had the subject in mind, and either has withheld an express promise in regard to it, one will not be implied. (Bruce v. Fulton Nat. Bank, 79 N.Y. 154.) In this case the court said: "It is very plain that here is a covenant by the lessor only, — an agreement by her to give a new lease. There is none by the lessee to accept it. If we consider it in connection with the covenants which have preceded it, we see that it thus expresses the whole intention of the parties, for such is their language. It declares a covenant on the part of one to do an act. If it had been intended to bind both, or to impose a correlative obligation on the other, we should expect a clear statement to the effect, not only that one would give, but that the other would take a lease, or the use of words from which such an agreement must necessarily have been implied. It is not a present grant accepted by the other party, but a conditional promise or covenant to grant in the future a further term. It may be regarded as an offer for the benefit of the lessee, or as an inducement to him to build upon or improve the premises, giving assurance that if he did so he should enjoy the fruits of his expenditure for a longer period. (Abeel v. Radcliff, 13 J.R. 298)."
It is insisted, however, that the lessee by remaining in possession elected to accept the renewal, but election depends on intention and as she continued in possession under a claim, asserted promptly and in good faith, that the rent had not been fixed by a valid appraisal, it was no evidence of an intention to elect. If her claim was not well founded, she was subject to dispossession for holding over after the expiration of her term. It was a wrongful act for which the lessor has a remedy, but he cannot compel her to execute a lease, which she never agreed to execute. As she not only refused to accept the new lease when tendered, but also claimed that she had not been put to her election whether to accept a new *Page 399 lease or not, the mere fact that she held over was not, under the circumstances, such a decisive act as would support the finding of an election on her part and the referee did not so find. Her claim as to the validity of the award was not well founded, but still her prompt and persistent assertion of the claim in connection with an absolute refusal of the lease shows that she did not elect to take it.
The judgments below, therefore, should be so modified as to strike out the provision requiring the plaintiff to execute and deliver to the defendant a new lease of the premises described in the complaint, and as thus modified affirmed, without costs in this court to either party.
All concur.
Judgment accordingly.