The lease contains no express provision as to which of the parties is responsible for taxes. Ordinarily in such case, the law presumes the landlord will pay. When the lease permits the erection of buildings removable by tenant at the end of the term and there is no statement of the kind or cost of the improvements and there is no provision as to taxes, it may be presumed the tenant is to pay the taxes, for it is impossible for the landlord to tell what the burden of the tax is to be and, therefore, he has no basis for rent regulation in that connection. Here (1) at the time the lease was executed the tanks had either been *330erected or plans therefor approved by the landlord. It knew what the tax burden would be and must have arranged the rent to include taxes accordingly. (2) One of the provisions permits erection of any other buildings upon written permission of the landlord, which will be given where it does not affect the conduct of the business of the landlord or the insurance rate affecting the premises of the landlord in the neighborhood. Not a word about taxes. (3) Clause 21 contains the only reference to taxes and gives the tenant the right to pay the same if the landlord defaults, and to deduct same from the rent. The clause mentions taxes “ assessed against the premises.” Nothing to indicate that “premises”' excluded the tanks in question. (4) The commencement of this action for reformation, in which plaintiff concedes on the appeal it did not make out a case on the facts, indicates that the .landlord construed the lease as expressive of an intent of the parties that the landlord should pay the taxes on the tanks. (See f 8 of amended complaint.) The question now raised by the landlord was an afterthought. (See opinion of Close, J., on reargument.*) Under the circumstances, it must have been the intention of the parties that the landlord was to pay the taxes on the tanks.
Lazansky, P. J., Hagarty and Davis, JJ., concur; Tompkins, J., with whom Scudber, J., concurs, dissents and writes for reversal.
Opinion of Mr. Justice Close on reargument.
Close, J. The motion for reargument is denied. The lease provides that if the landlord (the plaintiff here) shall default in the payment of any taxes assessed against the premises, the tenant may pay the same and the amount may be applied by the tenant upon any rent due or to become due.
The landlord now argues that notwithstanding this provision, the tenant must pay the taxes against any structures placed thereon by the tenant, if the title remains in the tenant. I am unable to agree. The assessment is against the real estate as such. (Tax Law, § 2, subd. 6.) The word “ premises ” as used in the lease must be construed to mean the land and buildings erected thereon. (Appeal of Hilton, 116 Penn. St. 351; 9 Atl. 342; Steinhardt v. Burt, 27 Misc. 782; Winlock v. State, 121 Ind. 531, 533.)
I am confirmed in my conclusion that the landlord covenanted to pay the taxes by the clause in the lease giving him control over the erection of structures upon the land. The authorities cited by the plaintiff, such as People ex rel. H. R. Day Line v. Franck (257 N. Y. 69), are not in point. There the question was between the taxing authority and the owner of the building. Here we have an express covenant by the landlord to pay.
The defendants’ proposed findings will be held ten days to permit the plaintiff to submit requests.