I concur with Mr. Justice Burr in his opinion that the judgment for the defendants on the pleadings should not have been granted. Under her complaint, the. plaintiff might have shown that the option agreement and the lease were made and delivered as part of one and the same transaction. Actual notice of the option agreement on the part of the defendants is alleged. The case would then t stand on the same basis as if the option agreement was contained in the lease itself. It is quite common to find such option agreements in,leases. It would be going very far to hold that such agreements in leases are not enforcible in equity. If such is to be held, then the holding would be quite contrary to the common understanding pf the parties. I think that the Court of Appeals in its opinions in Wadick v. Mace (191 N. Y. 1) and Levin v. Dietz (194 id. 376) did not intend to declare that option agreements in leases, at least, were beyond the protection of equity, under proper circumstances.
Judgment reversed and new trial granted, costs to abide the final award of costs.