Niederstein v. Cusick

Woodward, J. (dissenting):

If as, Mr. Justice Hooker holds, there was an option as to renewal in each of the parties to the lease, the bulk of the language becomes mere verbiage, and what he calls the seemingly positive and unequivocal agreement to renew ” proves a nullity. That agreement, as appears from the record, forms a distinct and separate paragraph with its introductory words capitalized, as follows: “ IT IS FURTHER EXPRESSLY UNDERSTOOD AND AGREED.” The paragraph immediately following this agreement has the same capitalized introduction and relates to new buildings which the lessee undertook to erect on the demised premises and which were to remain his property, “except that on the expiration of the two terms of five years ” the buildings were to become the property of the lessor. Then follows the paragraph which creates the ambiguity and gives rise to this litigation. It is the only paragraph in the lease without introductory capitals and, as shown in the record, contains no italics.

In construing deeds and other instruments the lawful intention of the parties is to he effectuated, and, if the language is ambiguous. *41the court will look at the surrounding circumstances existing at the-time the contract was entered into and at the acts done under it. (French v. Carhart, 1 N. Y. 96.) The parties to this instrument-could not legally execute a lease for a longer term than five years* and to the lessee, who proposed to erect substantial structures on the-demised premises, protection in the nature of a renewal agreement, was necessary.

Where the language of an instrument is susceptible of two constructions, one of which will render it valid and the other invalid, the former will be adopted. (Post v. Hover, 33 N. Y. 593; Coyne v. Weaver, 84 id. 386; People ex rel. Myers v. Storms, 97 id. 364.) Every uncertainty is to be taken in favor of the grantee. (Jackson v. Blodget, 16 Johns. 172; Clover v. Shields, 32 Barb. 374.) And it has been repeatedly held in this State that, in case of doubt, the. lease should be construed most favorably to the lessee. (Loeser v. Liebmann, 39 N. Y. St. Repr. 12; Broadway & Seventh Avenue R. R. Co. v. Metzger, 27 Abb. N. C. 160; Windsor Hotel Co. v. Hawk, 49 How. Pr. 257.)

It cannot be denied that this lease is ambiguous. Our duty is to construe it, and cases where the renewal was clearly optional in the lessor are not in point. Reading the whole instrument and taking into consideration the attendant circumstances I am of opinion that when the parties incorporated in the lease this clear and unequivocal agreement to relet or make a bona fide application to the Supreme Court for leave to do so, they did this for a purpose evidenced by the unmistakable language of the paragraph, and we cannot effectuate their intent by determining that the agreement to renew is a mere nullity. Such a determination exaggerates the importance of a minor and subsequent paragraph introduced to provide for the contingency of the court’s refusal to allow a renewal, a paragraph which, upon this question of option, should be regarded as surplus-age. The agreement to renew amounts to a covenant without an option, and no case has been cited, nor have I been able to find any, where subsequent language inconsistent with such a covenant has been held to overthrow it.

For these reasons I think the judgment should be reversed.

Judgment affirmed, with costs.