The defendant Moore is the' owner of a piece of property on West Twenty-fourth street. In 1866 a lease of said property was made-to one David Seaman for twenty-one years.. It was -provided that in case of the erection on the said lots of buildings of specified -description the. owner, his successors or assigns should, at the expiration of the said term, grant a new lease for the further term of twenty-one years át a reasonable rent to be ascertained as therein provided. On the 8th of April, 1887, a lease -was made to the plaintiff which recited the former lease and that buildings had been erected on- the said lots of ground of the description mentioned. This lease provided that the lessee should have- and hold the said lot from the-1st of May, 1887, for and during and until the full end and term of twenty-one years, paying $130 yearly and every' year during the said term in two.equal half yearly payments on the first *343of May and the first of November, the first payment to be paid on November first next, subject to the taxes, assessments and incumbrances which the lessee should pay. “ Provided always, that if it shall happen that the said yearly rent or any part thereof shall not be paid on any day on which the same ought to be paid as aforesaid, then and at all times thereafter it shall be lawful for the said party of the first part, her heirs and assigns, into said demised premises * * * to re-enter and repossess; * * * and * * * that she the said party of the second part * * * shall and will on the last day of the term hereby granted, or other sooner determination thereof, well and truly surrender and deliver up the said hereby demised premises, inclosed by a good and sufficient fence into the possession of the said party of the first part ■ * * * ■ without fraud or delay ; * * * and it is hereby mutually agreed * * * that if at the end and expiration of the said term hereby granted, there shall be standing on the hereby demised premises a good and substantial dwelling house of at least two stories in height constructed of brick or stone with fire-proof roof, and the said party of the second part, her executors, administrators and assigns shall and will during the whole of the said term well and faithfully keep all and every the covenants herein contained on her and their part and behalf, that then the said party of the first part, her heirs or assigns shall and will at such the end and expiration of the said term grant unto the said party of the second part, her executors, administrators or assigns * * * a new lease of the said lot of ground for a further term of twenty-one years thence next ensuing at such reasonable annual rent, to be paid half yearly, as shall then have been agreed upon by the parties or otherwise settled and ascertained as is hereinafter provided, but not less than the rent reserved by these presents. Such third lease to contain a covenant * * * for a further term of twenty-one years” at a rent to be settled and ascertained in the manner provided, or then pay to the said party of the second part, her executors, etc., the just and fair value to be ascertained in the manner hereinafter provided of any house of the kind hereinbefore described which may be standing on said premises at the end of such term.” It was further provided that whenever and as often ás any future lease should end and expire and any such dwelling house should then be standing, “ and the said party of the second part * * * shall *344and will during the whole of the term thereby granted well and faithfully keep all the covenants therein contained,” the party of the first part should he held and bound at her and their option either to pay the just and fair value of siicli house or to renew the lease for the further term of twenty-one years- at a reasonable rent to be agreed on or settled, which new lease should contain the like covenants and agreements respecting the renewal of said third lease. And it was provided that if there was no agreement as to the augmentation of rent or the value of the house each should nominate an impartial person at least a month before the expiration of the current term who should fix the' amount, and if these appraisers disagreed they should appoint a third to act with them.
It will be seen that the rent was payable, not in advance, but at the end of each half yearly period, and that the option of a renewal or of paying for the value of the buildings was not given to the landlord on May 1, 1908. He was bound to give the tenant a renewal of the lease which expired on said day if the tenant should have complied with the conditions precedent on his-part to entitle him to such renewal. Before the expiration -of the term, on March 18, 1908, the landlord informed the tenant that" her lease would expire on May first; that the rent for the next term would be $425 ■a year and asked to be advised promptly if she wished to renew. This increased rent the tenant refused to pay and appraisers were appointed, the time therefor being extended by mutual consent,, so that it was not until the twenty-ninth of April that the defendant appointed his appraiser. These appraisers have not yet reported. The plaintiff did not pay the rent due for the last half year of the ■ twenty-one-year lease on May 1, 1908. On May fourth the landlord wrote : ^ Under the terms and provisions of your lease of Ho. 460.West 24th street, which expired on May 1st,"you are not entitled to a renewal unless you shall have during the whole of said term well and faithfully kept all of -the covenants on your part to be performed. You have not, as we are informed, kept all of these covenants, having violated among others, the covenant to pay the rent. The landlord is, "therefore, under no obligation to grant you a renewal and does not care to do so. If you care, however, for a. short lease we are willing on behalf of the landlord to take the matter up with you; otherwise we must ask you to surrender posses*345sion of the premises. Please let us hear from you at once.” On the receipt of this letter on May fifth the plaintiff sent a check which the landlord received on the sixth, the plaintiff simply inclosing it with a slip which said : “ New York, May 5th, 1.908, ground rent 460 West 24th.” Por this the landlord gave a receipt reading as follows : “ May 6th, 1908, Received of Mrs.* E. 0. Montant claiming to be the tenant of lot 12 Chelsea Cottages, Sixty-five 00/ dollars on account of the installment of rent due and payable May 1st, 1908. This payment is accepted by the landlord without waiving any rights to insist that the tenant’s rights to a renewal of the lease expiring on May 1st, 1908, are terminated through failure to observe the covenant of said lease.”
In September thereafter the landlord commenced dispossess proceedings in the Municipal Court and the plaintiff thereupon commenced this action in equity to enjoin the prosecution of such proceedings, to be relieved of her forfeiture, if any, and to compel the granting of a renewal lease for twenty-one years upon such rent as should be fixed by the arbitrators appointed or upon the method fixed by the lease in case such arbitrators refused or did not act by an ascertainment of the value of the land considered as vacant property and a rental based upon five per cent of such ascertained value.
The plaintiff proved that-she had never paid the rent upon the due day, and some ten checks were offered in evidence showing payments from twenty-five to ten days after the due day, and testified that she was accustomed to wait until she received notice, which was always received after the due date, and that she then sent the check and that there was never at any time any objection made to the delay in the payment; that she was ready, willing and able to pay on the 1st of May, 1908, the sixty-five dollars due and that it was a mere inadvertence in not paying; that she promptly sent her check upon receipt" of the letter alluded to. She claims that this was a condition subsequent and that a court of equity ought to relieve her of such a forfeiture ; that she had a right to rely upon the course of conduct which had existed for so many years, the pleasant relations which had always been had and the appointment of the arbitrators so close to the end of the term.
The difficulty is that this is not a forfeiture. No lease has been *346forfeited by the failure of a performance-of a condition subsequent. A right to a renewal of a lease lias been lost by the failure to perform a condition precedent. Her sole right was to have a new lease if at the time of the expiration of the old lease she had duly performed all the-covenants therein contained. At the expiration of the term she had not performed because she had not paid the last six months’ rent. People's Bank v. Mitchell (73 N. Y. 406) seems decisive of-the question. In that case there was a'similar lease which provided for a further term or the payment of a just and fair value of1 any building which might be standing on the premises. The lease provided that the lessee should pay,a 11 taxes during the term and contained a condition that if the lessee should fail to perform any covenant or condition that it should be lawful for the lessor to re-enter. The court said: “ The performance of this, covenant by the plaintiff preeedes-in time the provision for the renewal of the lease of the paying for the building by the defendant as therein provided ; and until the plaintiff had fulfilled this.condition lie had no remedy at law against the defendant. The authorities are numerous which uphold this doctrine. 4 * * The plaintiff in his complaint has alleged that lie'has in all respécts performed and fulfilled the covenants' and conditions of the lease as lie was bound to do in order to make out a cause of action, and the answer denies such allegation. Upon the trial.the question of performance was an issue, in the case and without proof of performance, as already stated, no recovery could be had. It appeared upon the trial * * * that the taxes for the year 1866 were not paid by the plaintiff and that this covenant was not fulfilled by him. It also appears from the- findings that no evidence was offered showing any excuse,, mistake, inadvertence or surprise on the part of the plaintiff, or fraud or deception on the part of the defendant. The plaintiff, therefore, by liis own' evidence -shows that he is in default and that lie has not fulfilled an important covenant of the lease under which he claims to recover. Under such circumstances it is not apparent how the alleged failure to fulfill can be excused.” This case,also treats of the question of the appointment of appraisers. “ The consent to ah appraisement by the defendant and the naming of an appraiser was not evidence of a performance by tlie plaintiff, nor of a waiver by the defendant,.and did not operate as an estoppel upon the *347defendant. He liad a right, as is quite obvious, to insist upon a performance after the submission had been made, and hence, no waiver was legitimately to be inferred from his acts.”
So in the case at bar the time to pay thié last installment of rent had not expired when the appraisers were appointed and their appointment had nothing to do with this last rent payment, but was an entirely independent act. The court in the case cited goes onto say: “ The counsel for the plaintiff seeks to avoid the effect oh the default in the payment of the taxes upon the ground that there was only a technical forfeiture which a court of equity will relieve. Equity will relieve against a breach of covenant for the payment of money, where the covenant is in the nature of á penalty or forfeiture and designed merely as a security to enforce the principal obligation, and in such cases only where by the payment of money the parties can be put in the same position as if there had been no default. * * * So, also, in case of mistake, accident, fraud or surprise, relief may be obtained in equity; but the rules stated, which are sometimes invoked to prevent injustice have no application where, as in the case at bar, the mode of determining the rights of the lessor or his assigns to a new lease or to payment for his building are expressly provided for, .and the liability of the defendant as specified is dependent upon the performance of conditions precedent which have not been performed. There is no ground upon which a court of equity should intervene to relieve the lessee from the consequences of a failure or neglect to perform.” This seems to be one of those cases where a party has the right to stand upon his legal rights no matter how selfish or harsh such conduct may appear to be. (Pike v. Butler, 4 N. Y. 360; McIntosh v. Rector, etc., 120 id. 7.) Here was an owner of property who was bound under the terms of his lease to renew for a long term of years at an annual rental much below what he thought the property could bring, and here was a lessee who was entitled to such renewal with the opportunity to sublet at very much more than he was receiving for the same period. That right depended, however, upon the clearly expressed covenant of full and complete performance during the whole term of the prior lease. The landlord did nothing to prevent the payment of the amount due; no fraud can possibly be attributed to him, and the failure to pay upon the day cannot be *348attributed to surprise or mistake within the meaning of equity. The Special Term has found on sufficient evidence that the defendant “ did not agree to extend the time of such payment, nor waive punctual payment of said installment of rent, nor did lie do any act calculated or designed to mislead the plaintiff, or from which the plaintiff was entitled to infer that- punctual payment of said rent would not be insisted on as a condition precedent to a renewal of her lease.” . A forfeiture implies the loss of that which one lias, and there was nothing forfeited. The lease had expired. It was a clear condition precedent which was not performed and equity will not interfere any more than law. “ There is no ground upon which a court, of equity should intervene to relieve the lessee from the consequences of a failure or neglect to perform.” (People's Bank v. Mitchell, supra; Haines v. Barber, 113 App. Div. 696.)
The judgment appealed from should, therefore, be affirmed, with costs and disbursements to the respondents.'
Judgment reversed, new trial ordered, costs to appellant to abide event.