I cannot concur with Mr. Justice Patterson. The complaint alleges that on the 14th of December, 1891, the firm of Wynkoop & Hallenbeck were the lessors of certain premises in the city of New York, and on that day did execute and deliver to the plaintiff a lease of the said premises for the term of three years from the 1st day of May, 1892, with a privilege of renewal for five years from the expiration of the same, and at the same rental, and that on the same day, in consideration of the said lease, the said Wynkoop & Hallenbeck, for the purpose of securing to the plaintiff the performance of said agreement and covenant of renewal of the said lease for the said term of five years, did execute and deliver to the plaintiff their certain bond and writing, obligatory, under seal, in the sum of $2,500, wherein and whereby the said Wynkoop & Hallenbeck became bound to pay to the said plaintiff the said sum of $2,500, conditioned as follows: “ In case the said Wynkoop & Hallenbeck fail to give the said Polhemus Printing Company a renewal of the lease of the premises 121 Pulton street and 48 Ann street, at the same rentx (for a further period of five years); and if such renewal is given to the said John Polhemus Printing Company, then this bond shall be null and void,” and a copy of said *531bond is annexed to the complaint. The complaint then alleges the death of Wynkoop, one of the obligors, and the appointment of one of the defendants as his executrix, and that the defendants have failed and neglected to give to the plaintiff a renewal of said lease of the said premises for a further period of five years from the expiration of the original lease. The defendants .answered separately. They admit the execution by the firm of Wynkoop & Ilallenbeck of a lease of the premises, and the execution by Wynkoop & Ilallenbeck of a further instrument to the plaintiff, but deny that the instruments are correctly set forth in the complaint; admit the death of Wynkoop and the issuance of letters of administration to the defendant executrix, and admit that the defendants have not given to the plaintiff a new lease, or any renewal of the lease, upon the premises mentioned in the complaint.
The case came on for trial, and the plaintiff introduced in evidence the lease from Wynkoop & Ilallenbeck to the plaintiff, and also the instrument given, as alleged in the complaint, for the purpose of securing to the said plaintiff the performance of the said agreement and covenant of renewal of said lease for the said term of five years. Thus, from the allegations of the complaint it appears that these two instruments were executed simultaneously and for the purpose of securing to the plaintiff the performance of the covenant of renewal. Upon this allegation of the complaint, upon which the plaintiff bases the cause of action, unless there was a breach of the covenant for a renewal of the lease, the obligation upon which the action was brought was void, and no cause of action was proved. The covenant of renewal contained in the lease is as follows: “ With the privilege of renewal for 5 years at the same rent when a new lease is given parties of the first part by owner of the building.” It was not alleged in the complaint, nor was it proved upon the trial, that any new lease was ever given by the owner of the building to the firm of Wynkoop & Hallenbeclc, but it appeared that pending the negotiations for a new lease between the owner and plaintiff lessors, the plaintiff obtained from the owner of the building a lease of the premises to itself, and thus put it out of the power of the firm of Wynkoop & Ilallenbeck to obtain such a new lease.
The fundamental question is whether there was any breach of • this obligation on behalf of the plaintiff’s lessors to give plaintiff a *532renewal lease. This obligation seems to me to be conditioned upon the plaintiff’s lessors obtaining a new lease from the owner of the building. There is no express covenant to grant a renewal lease. A privilege for a renewal of this lease when a new lease was given to the plaintiff’s lessors by the owner 'of the building, was given to the plaintiff. Nor was there any covenant, either express or to be implied, that the plaintiff’s lessors would either apply for or obtain such a new lease. The privilege which the plaintiff was granted by this agreement was to obtain a renewal lease from its lessors when the lessors obtained a new lease from the owner, thus preventing the plaintiff’s lessors from obtaining a new lease from the owner and then ejecting the plaintiff from the premises; but the privilege itself never was to become operative until the plaintiff’s lessors did obtain such a new lease from the owner. No other construction can be given to the instrument, and the plaintiff does not allege that this agreement, as executed, did not express the real intention of the parties. To hold that there was any obligation upon the plaintiff’s lessors to obtain a new lease upon any terms and conditions imposed by the owner would be to place the plaintiff’s lessors at the mercy of the plaintiff and the owner, a position in which it is certainly impossible to imagine that any person would voluntarily place himself. Thus, assuming that the instrument sued on was what the plaintiff alleged it to be, namely, an instrument given to secure the performance of the agreement and covenant of renewal' of .said lease,, there was certainly no proof that there was a breach of covenant contained in the lease, the event upon which such covenant was to depend, viz., plaintiff’s lessors obtaining a new lease from the owner of the building, never having occurred. Plaintiff’s lessors had never obtained from the owner of the building a new lease of the building. A strict construction of the instrument sued on, standing by itself, makes the instrument void. By its terms, in case Wynkoop & Hallenbeck failed to give to the plaintiff a renewal of the lease, aud if such renewal is given, the bond is declared null and void. It is quite clear, however, that this does not express the intention of the parties, because the conditions substantially nullify the instrument. It is not entirely clear, however, whether it was intended to provide that in case the firm of Wynkoop & Hallenbeck failed to obtain from the owner a renewal *533of the lease, or in case a renewal is given to the plaintiff, the bond should be void; or whether it was intended to insert a provision that, in case the plaintiff’s lessors failed to give to the plaintiff a renewal lease, then the bond should be in full force and effect, as claimed by the plaintiff. Such a clause would seem to be useless, as by the bond itself the obligation is created, and it was not necessary to provide a condition upon which it should be valid. It was only necessary to insert the condition upon which it should be void. Ho evidence is given-by either party tending to show what was the real intention of the parties, and plaintiff must rely upon, the allegation of the complaint that the instrument was given to secure performance of the obligation of the plaintiff’s lessors, as contained in the lease for a renewal thereof; and there never has been, as we have seen, a breach of that agreement for a renewal. Upon every aspect of the case, whether we assume" that the obligation was given merely to secure the performance of this covenant of renewal, or that it was a bond which should be construed as standing by itself, the condition of the obligation was never broken, and no cause of action was proved.
The refusal of the plaintiff’s lessors to give a renewal lease did not impose upon them any liability. They were under no obligation to give such a renewal until they had themselves obtained a new lease from the owners. And a demand for such a renewal over a year before the lease expired, and a refusal then to give such renewal, was not a breach of a covenant to give a renewal when a new lease was obtained from the owner. The plaintiff’s lessors then had the right to say : “ We will not take a new lease from the owners unless yon are willing to pay an increased rent.” That is just what they did say, and plaintiff understood what was said at that time, as it at once took a lease from the owner. But in any event the dismissal as to the defendant executrix was clearly correct. The bond sued on was joint, not joint and several, and the death of one joint obligor discharged his representatives from liability to the obligee, and the survivor alone can be sued.
At the end of the case the counsel for the defendant executrix moved for a dismissal of the complaint on the ground that the bond sued on was a joint bond and not several, and that no cause of action survived the death of Wynkoop as between Wynlcoop’s estate and
*534the creditors. That motion seems to have been denied, but subsequently the court dismissed the complaint as to both defendants, and as the dismissal as to the executrix was right, that dismissal should not be reversed upon the appeal. I think, however, that as there was no breach of the covenant of renewal, no cause of action was alleged; and that the judgment should be affirmed.
Judgment reversed, new trial ordered, costs to appellant to abide event.