On the 9th of April, 1914, plaintiff’s predecessor in title executed a lease for the term of ten years from May 1, 1914, of the premises No. 422 West Fortieth street, on which there was a five-story flat with a three-story building in the rear thereof, to the decedent, Joseph Stern, who died on the 2d day of November, 1918, leaving a last will and testament, naming the defendants as executors. It was provided in the lease that the premises were to be used only as living apartments for respectable, white families. The rental was $110.42 per month after the 14th of July, 1914. It was provided that all improvements made by the tenant should be considered as affixed to the freehold and not removed and the tenant was to permit the landlord or his agents to show the premises to persons desirous of purchasing the same. The tenant deposited with the landlord the sum of $110 as security for the performance of his agreement to make certain specified improvements. The 16th clause of the lease was as follows: “ If landlords sell or are defeased of title during the first two years of term, then tenant shall receive full amount of improvements he shall have made not exceeding twenty-five' hundred dollars and if event happens, 3d, 4th, 5th, 6th, 7th or 8th years of term, then tenant to receive 85%-80%-60%-40%-30% or 10% respectively of the value of the improvements. And the said landlord doth covenant that the said tenant on paying the said yearly rent and performing the covenants aforesaid, shall and may peaceably and quietly have, hold, and enjoy the said demised premises for the term aforesaid.” The lease was quite long and, for the pur*514poses of this appeal, it is sufficient to state that it contained the usual provisions. Five days after the original lease was made, the parties entered into a short supplemental agreement in writing referring to the original lease and stating that “ the parties thereto desire to make an additional and supplemental agreement thereto.” The 1st clause of the supplemental agreement is as follows: “ That the term provided for in the aforesaid lease of April 9th, 1914, be and hereby is changed to a fixed term of twenty-one (21) years, to wit, from May 1st, 1914, to May 1st, 1935, in lieu of the term provided for therein.” The 2d clause increases the rent three dollars and thirteen cents per month. The 3d clause provides for a deposit on May 1, 1923,-as security for the faithful performance on the part of the tenant for the balance of the term. The 4th clause obligated the tenant to make improvements as follows: ' “ Tenant agrees to install one enamel bath-tub with two bibbs and necessary piping and one toilet with flush tank in each apartment of premises, at and within the same period of time as is provided for in the aforementioned lease.” The 5th clause provides that the improvements so made “ shall become real property and belong to owner.” The 6th clause provides that the improvements shall be made in a workmanlike manner and as required by the public authorities and regulations. The 7th clause provided that if the occupancy of the store shall cause rates of premiums of fire insurance to be increased, the tenant shall pay the additional rate. By the 8th clause the tenant agreed to assume responsibility with respect to the improvements and to save the landlord harmless therefrom. The 9th provided that the supplemental agreement should be in force and binding only on the express condition that the tenant should make the specified improvements in the manner therein provided and that otherwise it should become null and void. The original landlord sold the premises to the plaintiff on the 11th day of April, 1919. The summary proceeding was instituted and sustained on the ground that the lease of the tenant terminated on the sale by virtue of the provisions of clause 16 of the original lease quoted. The learned counsel for the appellants contends that the provisions of clause 16 were superseded by the supplemental agreement, *515wMch was intended, as its phraseology indicates, to give the tenant a fixed term of twenty-one years. That such was the case is also indicated by the provisions of the supplemental agreement with respect to the extensive improvements which the tenant was required to make which were to become part of the freehold and belong to the owner. These provisions, unlike those in the original lease, are unconditional, whereas under the original lease, in event that the term was abridged by a sale, the tenant was to be reimbursed certain percentages of the cost of the improvements. The tenant offered to show that the improvements required to be made and made under the supplemental agreement cost $6,900, but the evidence was excluded. Respondent relies largely on a judgment of the Supreme Court, entered on the 22d of November, 1916, in an action by the original landlord against the tenant for the reformation of said paragraph 16 of the original lease, by adding at the end of the first sentence of said paragraph the following: “ and on making such payments, this lease shall cease and determine and become null and void.” It appears that the judgment was entered by consent. The action came on for trial before Mr. Justice Greenbaum and counsel for defendant conceded that it was. the original intention of the parties that those words should be inserted and that the tenant had no objection to having them inserted by the judgment of the court. The supplemental agreement was not before the court and there was no adjudication with respect thereto nor -was there any judicial construction tif or adjudication with respect to the effect thereof on the original lease. It is, therefore, precisely the same as if those words had originally been incorporated in the lease. By consenting to the judgment instead of pleading the supplemental agreement and claiming that the supplemental agreement superseded said paragraph 16 of the original lease and that there was no necessity for reforming the original agreement, the tenant should not be deemed estopped from so contending when the protection of his interests required it. He conceded that it was originally intended that the lease should be terminated by a sale of the premises and consented that a provision to that effect, doubtless omitted through inadvertence, should be inserted. The lease, therefore, as so *516reformed is to be construed precisely as if the provision inserted by the judgment had been inserted originally. There is another agreement, however, on which the learned counsel for the respondent also relies and that on its face tends to support his contention. It was signed by the parties to the original lease on the 21st of July, 1914. It refers to the original lease and to the supplemental agreement and recites that in consideration of one dollar and the performance of the covenants contained in the lease and the supplemental agreement, it was agreed that the original and supplemental agreements should be modified “ in the following manner, to wit: That the parties of the first part will not sell or defease themselves of title in and to the aforementioned premises for a period of five years from the making of the aforementioned lease, and it is further
“ Covenanted and agreed that said lease, and supplemental lease, shall in all other respects, excepting as herein modified, be and hereby is confirmed.” This appears to have been a voluntary agreement on the part of the landlord, but it is claimed that it indicates that the parties understood that but for it the lease would be terminated by a sale of the premises any time after two years. The appellants, however, offered to show that this agreement was brought to the tenant by one of the landlords who requested him to sign it for a particular purpose and that it was not solicited by the tenant and that there was no consideration therefor. That evidence was objected to and excluded on the ground that it tended to vary the written instrument. That agreement, however, was not the one on which the landlord relied and it could not be claimed that the lease was terminated under it. It was only competent as tending to show the intention of the parties with respect to the meaning of the lease as modified by the supplemental agreement. That being its purpose and effect, it was competent for the tenant to show that it was executed at the instance of the landlord and for a particular purpose. If the evidence offered had been received, it might have appeared that the landlords realized that they had given the tenant a fixed term of twenty-one years and that this was an attempt to relieve them therefrom. If the construction of the original lease as modified by the supplemental agreement *517were doubtful, I think the evidence with respect to the cost of the improvements to be made and which were made by the tenant and the evidence showing that the agreement of July 21, 1914, was signed by the tenant at the instance of the landlord and for a special purpose, should have been received; but the agreement of July 21, 1914, contains no covenant on the part of the tenant and since its only importance is its bearing on the construction of the lease and supplemental agreement, which I do not deem of doubtful construction, it is not necessary to reverse and grant a new trial on account of the exclusion of that evidence. I think that the tenant was given a fixed term of twenty-one years which could not be abridged by a sale of the premises. The landlords were at liberty to sell and convey when they liked but the purchaser took title subject to the lease.
It follows that the determination of the Appellate Term should be reversed, with costs to appellants, and the proceeding dismissed, with costs.
Clakke, P. J., and Dowling, J., concur; Merrell, J., dissents.