From a judgment dismissing a complaint in. an action upon a bond the plaintiff appeals. The respondent claims, in the first place, that in consequence of the vagueness of the condition of the instrument sued on no enforcible obligation is made to appear. The bond was executed by Matthew B. Wynkoop and Harry 0. Hallenbeck, composing the firm of Wynkoop & Hallenbeck, and was given by them to the plaintiff in connection with a lease made by Wynkoop & Hallenbeck to the plaintiff of certain premises in the city of New York. The lease and bond bear date December 14, 1891. The lease was. “ for the term of three (3) years from the first day of May, one-thousand eight hundred and ninety-two, at the yearly rent or sum of seven thousand two hundred ($7,200) dollars and also the water; tax, with the privilege of renewal for 5 years at the same rent, whe?i a. new lease is given parties of .the first part by owner of the building.” The bond given in connection with this lease is thus conditioned: “ In case the said Wynkoop and Hallenbeck fail to give the said Polhemus Printing Company a renewal of the lease of the premises 121 Fulton street and 48 Ann street, at the same rentx (for a further term of five years), and if such renewal is given to the said John Polhemus Printing Company then this bond shall be null and void.”
It is quite apparent that something is omitted from this bond, but it was delivered as an operative instrument and the intention of the obligors is unmistakable. It is altogether plain that the condition upon which the bond was to be enforcible is the failure to give the renewal of the lease of the premises at the same rent stipulated to be paid in the lease in connection with which the bond was given, and it is stated in so many words that if the renewal is given then the bond shall be null and void. Notwithstanding the elliptical *526sentence its meaning is plain, and it requires neither reformation of the instrument nor extraneous evidence to establish the intent of the parties. The bond and the lease, as is properly claimed, must be read together, and so doing it is manifest that the former was given as an indemnity to the plaintiff against a failure of the obligors to give a renewal lease at the expiration of the three years at the same rent as that stipulated for in the then executed lease. But it is contended that the condition of the bond in connection with the terms of the lease respecting a renewal, created an obligation on the part of Wynkoop & Hallenbeck to grant the renewal at the same rent only “ when ” they acquired themselves a further lease of the premises from the owner of the building, and that hence by a proper construction of the whole agreement between the plaintiff and Wynkoop & Hallenbeck no cause of action could arise until a new lease was procured by Wynkoop & Hallenbeck, and they having so procured one, refused to grant a new term to the plaintiff at the old rental. It appears that on the lYth day of April, 1894, the plaintiff took a new lease of the premises from the owner from the 1st day of May, 1895, for the term of five years, at a rental of $8,000 a year, payable monthly. The three years’ term of the original lease between the parties would not expire until the 30th of April, 1895. It is thus seen that the -plaintiff, more than a year before the expiration of the original term, entered into a new lease, as tenant directly of the owner, which fact the defendants set up as constituting a full discharge from the obligation of' the bond, insisting that by reason of the acts and interference of the plaintiff it prevented Wynkoop & Hallenbeck from acquiring a new lease which would enable them to reletto the plaintiff on the terms of their covenant. There is abundant proof in the case to show that, notwithstanding the fact that the original lease had yet more than a year to run, both the plaintiff and Wynkoop & Hallenbeck took up the subject of the renewal of the lease in April, 1894, intending then to dispose of it finally. The relations of the parties as affected by the condition of the bond are constituted by their acts relating to the procurement of a renewal of the lease. The effect of the testimony is to establish that those parties at the date last mentioned began, continued and ended negotiations respecting that matter. As early as January, 1894, Mr. Tobin, who was the agent of the plaintiff, had an interview with one of the defendants *527concerning the renewal of the lease and lie was informed that Wynkoop & Hallenheclc were not then so situated as to enable them to attend to it at once, 'but that it would be shortly adjusted. In April, 1894, Mr. Tobin was told by one of the defendants that the owner of the premises had been seen, and that if the plaintiff wanted a renewal of the lease it could be had for $8,000 a year. Mr. Tobin swears that he said to Mr. Hallenheclc that Mr. Polhemus had sent him to get a definite answer in regard to the renewal and that Mr. Hallenheclc said, “Well, now it will cost you $8,000; they jumped the rent on me.” He then asked Hallenheclc if that was final and he said it was, whereupon Mr. Tobin said, “ Then it is simply pay $8,000 or get out.” To which was replied, “Yes, pay $8,000 or get out.” Mr. Tobin further testified that he took that information to Mr. Polhemus. That same afternoon a new lease was negotiated between Tobin and the owner of the building, and on the same day a letter was written by the plaintiff to Wynkoop & Hallenheclc, saying, “ We propose to at once, for our own protection, open nego- . tiations with the owners of the building or their agents.” On the next day the lease was taken directly from the owners of the building.
In view of this testimony, which is wholly uncontradicted, it appears that Wynkoop & Hallenheclc deliberately placed themselves in the position of refusing to treat further with the plaintiff concerning a renewal of the lease except upon the basis of the payment of rent at $8,000 a year. Under those circumstances, and situated as the plaintiff ivas, it had a right to rely upon the attitude which Wynkoop & Hallenheclc assumed in the transaction and to endeavor to protect itself the best way it conld by negotiating directly with the owner of the building; for it is to be remembered that the declaration made to Tobin was that, as between the plaintiff and Wynkoop & Hallenheclc, the former must pay the additional rent or quit the premises. The plaintiff was entitled to construe that as a • notification on the part of Wynkoop & Hallenheclc that they would proceed no further in the effort to procure a renewal lease at a rental of $7,200 a year. It must be regarded as a distinct and unqualified notice to the plaintiff that they would not get a renewal lease from Wynkoop & Hallenheclc on the terms stipulated in the original lease. We think that the plaintiff was entitled to regard the defendants as then and there abandoning all intent to carry out *528that covenant of the lease which provided for a renewal at the rate of $7,200 a year. Whatever took place between the plaintiff and Wynkoop & Hallenbeck subsequent to April sixteenth is quite immaterial. The defendants took their stand on April sixteenth, and on that day put the plaintiff in a position entitling it to protect itself. In that situation the words of the covenant relating to the renewal, which provided that “ when a new lease is given pa; ties of the first part by owner of the building,” cease- to be a- condition or limitation of the plaintiff’s right to look to the bond. They would be operative in the event of Wynkoop & Hallenbeck having done all that was required of them in good faith and in view of all the circumstances of the case, to procure a new lease under which they could grant a term to the plaintiff. Wynkoop & Hallenbeck disabled themselves from obtaining, or abandoned the effort to "obtain, a new lease under which they could make a grant to the plaintiff. The action is brought upon the condition of the bond and its absolute agreement to give the renewal, or, in the alternative, pay the stipulated sum. That condition immediately becomes operative by reason of the course pursued by Wynkoop & Hallenbeck in the matter. As said before, reading the bond and the lease together,, if any doubt exists as to the plaintiff’s right to a renewal being dependent upon Wynkoop & Hallenbeck getting one, the bond, at all events, was given to insure performance of the covenant of the lease and as security for non-performance of that covenant. The case shows plainly that Wynkoop & Hallenbeck broke the covenant of the lease; they did not grant a renewal; that they could not is the result of their own choice. They put themselves in such a position that they washed their hands of the whole subject; they turned the plaintiff over to the owner and allowed it to shift for itself. The bond then comes in as the contract establishing the right of the plaintiff and gives to it a cause of action for the breach of the condition.
The point that the complaint was properly dismissed as to the defendant executrix, the bond being a joint one and not enforcible against the. estate of Mr. Wynkoop is not well taken. No such defense is set up, nor was the question raised by a motion to dismiss. The point is taken here for the first time, and the objection is too late even if it were otherwise tenable.
*529The judgment should be reversed and a new trial ordered, with costs to abide the event.
Barrett and McLaughlin, JJ., concur.