The plaintiff, being lessee of the premises known as Nos. 116 and 118 East Fourteenth street in the borough of Manhattan, city of New York, under a written indenture of lease expiring April 30, 1921, on January 6, 1910, entered- into an agreement in writing with the defendant, which was engaged in constructing a theatre on the premises immediately adjoining to. the west and south. Thereby, after a recital of the desire of the defendant to cut an opening or doorway through the exterior westerly wall of the premises No, 116 East Fourteenth street for the purpose of providing an exit from said theatre at the third story of said building, and of obtaining the right and privilege of using the westerly stairways of said building for ingress and egress to said theatre, upon the terms and conditions thereinafter set forth, the parties agreed, among other things, that the plaintiff granted to the defendant the right and privilege to cut through the westerly wall of the premises No. 116 East Fourteenth street aforesaid at the third story of said building (being two floors above the street level) for the purpose of constructing a doorway or entrance from the theatre then in course of construction by defendant into the aforesaid building leased by plaintiff, and further granted to the defendant the right and privilege of using the westerly stairways in said building as a means of ingress and egress to said theatre through the. aforesaid doorway for persons attending performances in said theatre and for no other purpose. It was further provided that said user should be in common with the-plaintiff and the other tenants of said building. The defendant agreed, before cutting through the doorway in question, to submit to the plaintiff written plans and specifications'for the work, to be approved in writing by the plaintiff, and a certificate of approval was to be obtained from the building department of the city of New York before the work could be proceeded With. The agreement further provided as follows:
“The party of the second part [defendant] also agrees to submit to the party of the first part [plaintiff] written plans and specifications of the manner in which it intends to cause the said stairways to be used by it hereunder to be fireproofed, which plans and specifications' must he approved in *675writing by the party of the first part before the party of- the second part proceeds with said work. The party of the second part hereby agrees that said work shall be done by it in compliance with the rules and regulations of the Board of Fire Underwriters of the City of Hew York, of the Building Department, and all other Municipal and State Departments having jurisdiction of the same.”
It was further provided:
“ Third. The party of the second part does hereby upon the terms hereinabove and hereinafter set forth, lease from the party of the first part the privilege of cutting through the doorway above mentioned and of using the aforesaid stairways as a means of ingress and egress to the said theatre, and does hereby further agree to perform the work of cutting through said doorway and fireproofing said stairways in a workmanlike manner, in accordance with the plans and specifications to be approved by the party of the first part and in accordance with the rules and regulations of the Board of Fire Underwriters of the City of Hew York and of all Municipal and ■ State Departments having jurisdiction of the same at its own expense.”
It was also further provided:
“Fifth. The party of the second part further agrees in the maintenance and user of said doorway and stairways to comply with, at its own expense, all rules, orders and regulations of the Tenement House Department, Building Department, Board of Fire Underwriters and all other Municipal and State Departments having jurisdiction of the same. Upon its failure so to comply its right to maintain and use the said doorway and stairways under this agreement shall cease until the same is complied with, and the party of the first part shall have the right to comply with such rules, orders and regulalations at its own cost and add the same to the installment of rental to become due from the party of the second part on the first of the next succeeding month. ' The party of the second part also agrees at its own expense to keep said stairways in good repair and not to call upon the party of the first part for any repairs whatever.”
Plaintiff has brought this action to recover for the install*676ments of rent due under this agreement for the months of April, 1910, to June, 1911, inclusive, amounting to $1,166.67.
Upon the trial it developed that defendant had never submitted to plaintiff the plans and specifications called for by the agreement, and had never cut through the doorway which it was given permission to do under the agreement, nor has. it done aught under the contract save to pay rent for the three months — January, February and March, 1910. The defendant has set up by way of separate defense the refusal of the building department of the city of Hew York to approve the plans and specifications filed with it by the defendant for the doing of the work in question, and it appeared upon the trial of this action that such refusal was based upon the contention of the building department that the existing stairways could not be made fireproof unless they were completely inclosed within a brick wall, and unless the stairways themselves were built of iron. The plans, as filed by the defendant’s architect, did not provide for a completely fireproofed stairway, but under the amendments filed by him, the stairway was to have been made fireproof from the second to the third story only and not below that. Said architect well knew, when he filed both the plans and amendments, that he was not providing for a fireproof stairway, and that the only way to make it fireproof was to inclose it with brick walls. It appears as well, from the testimony of the superintendent of buildings of the borough of Manhattan, that if a brick wall had been constructed, separating the staircase from the building in which it was placed, it would in effect under the department’s interpretation qf the law, constitute a séparate building or construction, and thus any question of the right to its use could have been avoided.
It is apparent from the testimony that the defendant could have had the free exercise of all the rights and privileges conferred upon it by the agreement had it been willing to go to the expense of complying with the law and making this stairway completely fireproof. It is also clear from an examination of the agreement between the parties that they contemplated only such construction of the stairway after the alteration as would render the same fireproof, and upon the face of the contract, so far from any violation of the law being contera*677plated by the parties, they were both solicitous that there should be included in the contract every provision necessary to place upon the defendant the burden of complete compliance with every requirement of law.
It seems clear that the dismissal of the complaint herein cannot be sustained upon the ground assigned by the Trial Term, namely, that this was an illegal contract. The fact that plaintiff reserved to himself the right to use this stairway for himself and for other tenants, which under the building law he could not have done after the stairway had been inclosed by a brick wall, does not render the agreement void, but would simply operate to deprive the plaintiff of the right to said user, for his grant to the defendant was absolute, and when his reserved right came in conflict with the provisions of law, it ceased to afford him any privilege thereunder. There were other stairways in plaintiff’s said building which could have been used by him and his tenants.
The defendant has not asked for any reformation of this agreement, nor has it asked for its cancellation upon any ground of fraud, mutual mistake or any claim that the agreement was to have become operative only in the event of certain contingencies which have never arisen. It may be that the agreement does not express the real intent of the parties, or that there are other considerations which might appeal to a court of equity as a reason for relieving the defendant from its obligations, but those questions are not raised by the pleadings and are not before us.
Upon this record the judgment appealed from must be reversed, with costs, and judgment directed in favor of plaintiff in the sum of $1,466.67, with interest thereon, as prayed for in the complaint, and with costs.
Ingraham, P. J., and McLaughlin, J., concurred; Laughlin and Hotchkiss, JJ., dissented.