The action is to compel the specific performance by defendants of a covenant on the part of their testator to grant a renewal lease of certain premises, known as No. 119 Third avenue, in the city of New York. The defendants concede their obligation to execute a renewal lease which shall contain all the covenants and conditions of the expiring lease except the stipulation as to terms and rental, the sole question in dispute arising out of the insistence of defendants upon the insertion in the renewal lease of a clause to the following effect: *185“ It is expressly covenanted and agreed by the parties hereto that the making and delivery of this lease shall not operate to create any easement over or with respect to the lands of the parties of the first part, lying between the demised premises and 17th Street, unless such easement legally existed as against the owners of the fee of said land prior to the date and delivery of these presents.”
Robert R. Stuyvesant, defendants’ testator, was in his lifetime the owner of four lots on the southeast corner of Third avenue and Seventeenth street, and of two adjoining lots on Seventeenth street. These six lots were in 1871 leased by six separate leases made in renewal of leases made in 1854. The lot of which a lease is now sought to be compelled is the southernmost of the lots on Third avenue, commencing fifty-two feet south of the southeasterly corner of Third avenue and Seventeenth street. On September 30, 1913, defendants, as trustees, became owners of the three lots on Third avenue lying between Seventeenth street and the lot above described by virtue of releases executed by the three lessees of the lots. They then learned for the first time of the existence of a covered and concealed drain extending through all four lots on Third avenue in the rear of the buildings erected thereon, and connecting with a public sewer on Seventeenth street. This drain appears to have been constructed at some time by the tenants of the four lots, but there is no evidence that Robert R. Stuyvesant, or these defendants, ever knew of, or consented to or acquiesced in the construction or maintenance of said drain.
The defendants now find themselves in a dilemma. They concede that the plaintiff is entitled to a renewal lease which shall contain all the covenants (except as to rental and term) which the expiring lease contains, and one which shall vest in him for the term of the renewal lease precisely the same interest and estate in the land which he enjoys under the present lease, but they insist, and rightly, that he is entitled to no greater or further interest either in the land to be leased or in other lands belonging to them as trustees. They do not concede that plaintiff has at present any right to insist that the property leased to him shall continue to be drained through the private drain running over lands not embraced in the expiring *186lease, but they apprehend that if they now, knowing of the existence of the drain, shall lease to plaintiff the land in question “with the appurtenances” it may hereafter be claimed that they have granted, for the term of the new lease, the right to continue the use of said drain, thereby imposing a burden . upon the other property not included in the lease. For this reason they desire to insert in the lease the purely negative clause quoted at the beginning of this opinion, the effect of which would be to leave the rights of the parties, whatever they may be at present, unaltered and undisturbed by the new lease.
In my opinion the defendants are right in their contention and will fulfill the entire obligation resting upon them by the execution and delivery of a lease in the form in which they finally tendered it, that is, with all the covenants contained in the expiring lease plus the clause quoted above. There is no occasion to discuss the obligation on the part of the defendants to execute a formal renewal lease containing the “like covenants, agreements, provisos and conditions ” as were contained in the former lease for this obligation is clear and is expressly admitted by defendants, and the lease tendered by them does contain all such covenants, agreements, provisos and conditions. The object of including in the new lease all of the covenants, agreements, provisos and conditions contained in the expiring lease is to vest in the lessee precisely the same estate and interest in the land that he had under the expiring lease. So much he is entitled to and no more, for such a renewal lease, there being nothing in it to the contrary, is deemed to be merely a continuance and extension of the former lease. It certainly grants to the lessee the easements and appurtenances as they existed at the time of the original lease, but it is at least arguable that under certain conditions, for example such as are shown to exist in the present case, it might be held to include something more. At all events the defendants are entitled to be protected against the possibility of having to meet such a claim. It may be that the clause in question is not necessary for their protection. If it is not no harm can be done by the insertion in the lease, for it is purely negative and can deprive plaintiff of no right to which he is *187entitled. It leaves the question of the right to maintain and use the drain precisely where it stands now.
I agree with Mr. Justice Page that upon the evidence as it now stands and the findings of the trial court the plaintiff has shown no present right, as against these defendants, to insist upon the right to a continued use of the drain. That question, however, is not raised by the pleadings and is not necessarily involved in the issues raised thereby, and it does not seem to me to be entirely clear that a judgment to the effect that plaintiff is not so entitled would be res adjudicate/, in an action brought to test the question.
I am, therefore, of the opinion that the lease tendered by defendants fulfilled every obligation resting upon them and should have been accepted.
It follows that the judgment appealed from should be reversed and judgment directed for the defendants as demanded in the answer, with costs in this court and the court below.
Clarke, P. J., Dowling and Smith, JJ., concurred; Page, J., dissented.