I think the court below was justified in refusing to grant a temporary injunction restraining the improvement of this property, *198upon the ground that there is no explicit covenant by the defendants to construct the store leased to the plaintiff according to the Cutler. plans and specifications .which had been prepared by direction of the plaintiff for the improvement of the property. . The relief demanded in the complaint is that the defendants, their agents and servants, be enjoined and restrained from erecting a building on the land described, so far as the .first story and cellar is concerned, otherwise than, in accordance with the plaintiff’s plans and specifications made by one Cutler,- an architect, and the order appealed from denies a motion made by the plaintiff for a .temporary injunction pursuant to this prayer of the complaint.
It appeared that the plaintiff had leased a piece .of property upon the corner of Forty-fifth street and Broadway, upon which he intended to erect a building which would provide him with a store on the corner, twenty, feet and eleven inches in width and from fifty-six to sixty feet in depth. He caused plans for the erection of a building to be prepared, which provided for a 'building two stories high, and then transferred the lease to one Heuer, who executed to the plaintiff a lease of a store on the corner of Forty-fifth street and Broadway, twenty feet and eleven inches ih width and sixty feet in depth on Forty-fifth street-and fifty-six feet in depth on the southerly side of said store. This lease contains mo express covenant that the lessor should erect upon the premises ;a building in accordance with the Cutler plan; on the contrary, it would seem to have been' understood that the building to be erected was to be changed and the assignee of the lease had. Cutler, the architect, make such changes. The changed plan was seen by the plaintiff, to which he made no objection. The plaintiff does not claim,' as I understand it, that the- defendants were bound to erect the building designed -by the original Cutler plan. It is only the store as shown on that plan- that it is claimed that the defendants are bound to provide. After the provision for the lease of a store, -describing it by metes and bounds, the term is fixed at ten years'at the yearly rent of $2,500, and then comes the following provision : ec But the said rent shall not be due and payable until the completion of the said store according to the specifications of T. R. Cutler, Architect, now in possession of each of the parties hereto, by the party of the first part, and the occupancy thereof by the party *199of the second part, at which time the said annual rent, at the rate of twenty-five hundred dollars per annum, shall commence to run, it being understood and agreed that no rent shall be due from the lessee to the lessor until such completion and occupancy.”
The form of this covenant is suggestive as to the intention of the parties. The lease that is given to the plaintiff is of a store of certain dimensions, but without any provision as to its height or its relation to the level of the street. It is simply to be a store bn the corner of Forty-fifth street and Broadway, twenty feet and eleven inches in width and from fifty-six to sixty feet in depth. A store in the building on the corner of the street of these dimen.sions would satisfy this requirement in the lease, whether it was slightly above or below the level of the street, or whether the ceiling was of a uniform height of fourteen feet or eleven feet - in front and seven feet in the rear. It was clearly contemplated that the lessor was. to erect a building upon the premises "the lease of which had been assigned to him by the plaintiff, for in no other way could he fulfill the covenants contained in his lease; but as to just what height the ceiling should be, or as to whether the level of the store should be above or below the surface, there was in the lease no express condition. The further provision of the lease that the said rent should not be due and payable until the completion of the store according to the specifications of T. E. Cutler, architect, it being understood and agreed that no rent should be due from the lessee to the lessor until such completion and occupancy, is the only provision in the lease referring to the Cutler plans. This provision gave to the plaintiff a privilege, but in terms imposed no obligation upon the lessor. Before the plaintiff could be compelled to pay any rent under the lease the store had to be completed according to the Cutler plansbut this is quite different from an express covenant on behalf of the lessor to erect a building or store according to the Cutler plans and specifications. The supplemental agreement executed between the lessor and lessee, which provides that the plaintiff was to" be given possession of the premises leased by him not later than October 1, 1901, contains no reference to the dimensions of the store and no reference to the building that was to be erected upon the premises. The transfer of this lease from the plaintiff’s lessor to the defendant Curran, by *200which Curran covenanted' and agreed that he would carry out the covenants and agreements made by the plaintiff’s lessor with the plaintiff and other persons to whom portions of the building to be erected on the premises had been leased, refers solely to the obligations contained in the lease to the plaintiff and to certain additional . covenants relating to the plumbing in the building. Taking all of these instruments together, I cannot find; any specific covenant to construct a store of any particular height or at the level of the street, and while the plaintiff would be under no obligation to pay rent unless a store was constructed in accordance with the Cutler plans, I .can find no covenant sufficiently definite to justify a decree of specific performance, either directly or indirectly, by an injunction restraining an erection of a store other than that provided for. by the Cutler', plan. It may be that, upon the trial the evidence will show such a state of facts as would justify the court in finding that tiiis-lease, indefinite as to the store .to be erected, contemplated the erection of. the store according to the Cutler plan, and in such case the court could give to the plaintiff some relief; but in such a case if the defendants took an assignment of the lease without knowledge of any other agreement than that contained in the lease and that agreement did not require a store according to the Cutler plan, I do not.see how the court could require them to provide such' a store, . Upqn the facts as they now appear I think the ■ court was justified in refusing to tie up this building by a temporary injunction and thus prevent-the improvement of this property. -
I think, therefore, the order appealed from should be affirmed.
Order reversed, with ten dollars costs' and disbursemeUts; and motion for Injunction granted, with ten dollars costs to abide event. The amount of' undertaking to -be determined upon' settlement of order. ' .