The action is for several installments 'of rent at the rate of $15,000 per year, reserved in a lease of the roof of plaintiff’s building, on which defendant was authorized to erect and maintain an advertising sign. The building was ten stories high and in pursuance of the lease defendant erected a roof sign about eighty feet high, the top of which was about two hundred and thirty-five feet above the street. The building faces south and is bounded by Broadway, Forty-eighth street and Seventh avenue. The block immediately to the south is of flatiron shape, and at its southerly and pointed end Broadway and Seventh avenue cross, forming a wide open space. At the time the lease was executed this block was covered by buildings only about thirty-five feet high, thus making of plaintiff’s building a landmark for all persons coming north on Seventh avenue or Broadway, and affording to it- a conspicuousness which gave to its roof great value for advertising purposes. Some time after the lease was executed, on the southern end of the building occupying the northerly half of the flatiron and immediately in front of the plaintiff’s building there was erected a sign structure, the frame of which consists of three steel trusses running from east to west and two running from north to south, all of which are anchored in the walls of the building, and from these extend upright columns, forming a structure about sixty-four feet wide, the top of which is one hundred and sixty feet above the street, its entire weight being about 140 tons. At the top of this structure and by means of a construction more or less opaque advertisements are displayed. The effect is to substantially blanket the defendant’s sign, the degree of obscuration depending, of course, upon the view point. Prior to the erecting of this structure, the defendant’s sign was plainly observable on Broadway from about Fortieth street, from which point it is now to a very large degree obstructed from view.
*76The rent sued for accrued after the defendant had served notice of its cancellation of the lease in pursuance of which notice it abandoned the demised premises. Defendant bases its right to cancel the lease upon the following clause therein: “If at any time during the term of this lease a building should be erected in the plot of ground to the south, located between 47th and 48th Streets and Broadway and Seventh Avenue, of such a height as to obstruct the view of the signs of the tenant as provided for herein ” defendant might cancel on thirty days’ notice. The determining question, therefore, is whether the sign erected to the south of plaintiff’s premises constituted a “building” within the meaning of the lease. It is undoubtedly true that words used in contracts are ordinarily to be interpreted in accordance with their usual meaning. But there is a broader and more comprehensive rule, the observance of which is enjoined upon us that justice may be moulded to spirit rather than to form. As was said by the Court of Appeals, writing by Martin, J., in Gillet v. Bank of America (160 N. Y. 549, 555, 556): “In the construction of written contracts it is the duty of the court, as near as may be, to place itself in the situation of the parties, and from a consideration of the surrounding circumstances, the occasion and apparent object of the parties, ' to determine the meaning and intent of the" language employed. Indeed, the gréat object, and practically the only foundation of rules for the construction of contracts is to arrive at the intention of the parties. This is a most conspicuous and far-reaching rule, and involves the nature of the instrument, the condition of the parties and the objects which they had in view, and when the intent is thus ascertained it is to be effectuated unless forbidden by law. £ Contracts are not to be interpreted by giving a strict and rigid meaning to general words or expressions without regard to the surrounding circumstances or the apparent purpose which the parties sought to accomplish.’” It is because of the enlightened rule above referred to that courts have given to the noun “ building ” as to other descriptive words so elastic a construction as the reported cases disclose. It is for' the same reason that a literal definition of a descriptive word is of little value when doubt arises as to the sense in which it *77was used in any particular instance. As was said by Werner, J., in Caddy v. Interborough Rapid Transit Co. (195 N. Y. 415, 420), in which the court interpreted the word ‘6 building ” or “ structure ” as used in the Labor Law to include a street car under repair in defendant’s shop: “ In cases like this, lexicographers’ definitions are useful as guide posts, but they do not take us to our destination. The statutory meaning of a word or phrase must be gathered from the purpose for which the law containing it was enacted.” Elsewhere the learned judge very properly says: “A building is a structure which, of course, includes every form of artificial house; but also many structures not included in that more restricted term.” Turning to the Century Dictionary, we find ‘‘building ” to have the following definitions: “A fabric built or constructed; a structure. * * * In law, anything erected by art, and fixed upon or in the soil, composed of different pieces connected together, and designed for permanent use in the position in which it is so fixed, is a building. * * * Thus a pole fixed in the earth is not a building, but a fence or a wall is.” As authority for its legal definition, the Century cites Edward Livingston, but I have been unable to confirm the citation. Webster defines building as “A fabric or edifice constructed for use or convenience.” In Black’s Law Dictionary the definition is “A structure or edifice erected by the hand of man, composed of natural materials, as stone or wood, and intended for use or convenience.” Bouvier’s definition (Rawle’s Rev.) is similar. It is in this sense I think the word was used in the lease in question. G-uided by the rule of construction to which I have referred in Wright v. Evans (2 Abb. Pr. [N. S.] 308), building was held to include a fence, within the meaning of a covenant not to erect a building within a certain distance of a boundary line; and in Blakemore v. Stanley (159 Mass. 6) the Supreme Court of Massachusetts held that a “ tent ” violated a covenant not to erect any building other than a dwelling. Under the provisions of an act requiring that all necessary buildings must be erected by contract and let to the lowest bidder, the Supreme Court of California (Swasey v. County of Shasta, 141 Cal. 392) held that the act included a substantial iron fence around the county court house, the *78court in the course of its opinion saying (p. 394): “ There is no well established legal definition of the word 6 building ’ which absolutely, and under all circumstances, either includes or excludes a ‘ fence. ’ The question greatly depends upon the connection in which the word ‘building’ is used, and the evident purpose of the statute or contract in which it is found.”
As the clause quoted from the lease in question itself recites, the obvious and declared purpose of the parties was to allow the defendant to cancel the lease in the event that its value to the defendant should be substantially destroyed by the erecting on the plot to the south of any building “ of such a height as to obstruct ” the defendant’s sign. This result could be accomplished as well by a structure such as that as was in fact built as it could be by an edifice which would come strictly within the meaning of the word 1 ‘ building, ” as commonly or colloquially used. It is only by ignoring the plain intent of the parties that the word can be confined to its literal meaning.
I see nothing in the case of City of New York v. Wineburgh Advertising Co. (122 App. Div. 748) which in any way militates against the view I take of this case. That case involved the question whether a sky sign was embraced within the term “ buildings or structures” as contained in the Building Code. The court held that the sign was a “structure,” and in the course of his opinion Mr. Justice Scott added: “It is equally apparent that this particular structure is not a building, within any sense of that word.” These words were perhaps not necessary for the decision, because the case did not turn upon whether the sign in question was a building. But as I read the decision Justice Scott’s language was entirely proper, because the statute in question was directed not only to buildings as ordinarily defined, but to all other kinds of structures, and it was, therefore, quite clear that the defendant’s sky sign in that case was not a building within the meaning of the statute.
The judgment should be affirmed, with costs.
Ingraham, P. J., and Laughlin, J., concurred; Dowling and McLaughlin, JJ., dissented.