I favor a reversal. The trial court has dismissed plaintiffs’ complaint on a motion made at the opening of the trial upon the ground that it does not state a cause of action. It asks relief that plaintiffs be given possession of premises, and damages for the withholding thereof after the termination of a lease, the damages arising because of plaintiffs’ inability to give possession of the premises to a purchaser.
The term for which the lease was to continue and the rental reserved appear in the written agreement: “for the term of five (5) years to commence on the 1st day of October, 1933, and to end on the 1st day of October, 1938. And the said party of the second part hereby covenants and agrees to pay unto the said party of the first part the annual rent or sum of Six Thousand ($6,000) Dollars payable Five Hundred ($500.) Dollars, in advance on the 1st day of each and every month.” Concerning the term of five years so granted the contract provides: “ The landlord cannot sell the demised premises except it is subj ect to this lease. ” Defendant went into possession September 15,1933, his term ended September 30,. 1938, and under the facts pleaded plaintiffs were then entitled to possession.
The contract provided concerning a continuance or renewal of the lease beyond the five years: “ The tenant has'a right to renew for five years provided he gives a notice in writing a year before the expiration of the present term of five years, unless the landlord sells the property, but the landlord before doing so shall give the tenant thirty days’ notice of his right to purchase at the price offered *729by the proposed purchaser. This last provision, of course, applies to the second term and not the first term of the lease.”
It is pleaded that on July 1, 1935, the defendant wrote the then owners as follows: “ Please accept this letter as a notification this I wish too and will exercise my option for the second term of my lease on the Colony Theatre building, 1330 State Street, Schenectady, N. Y. I would appreciate it very much if you will confirm same soon by mail.” The tenant obtained no additional rights by writing the above more than two years before he was required so to do under the terms of the agreement. Under the agreement pleaded in the complaint he could only extend the lease beyond its original term in the event that the landlord did not sell the property after giving him an opportunity to purchase at the price offered by a proposed purchaser. The complaint pleads that the plaintiffs contracted to sell the premises for a sum set forth in the contract of sale with possession to be given on October 1, 1938, the day following the termination of defendant’s lease, and on August 16, 1938, gave notice to defendant thereof and annexed a copy of the contract of sale. The letter gave to defendant, in accordance with the provisions of the agreement, an opportunity and right to purchase the premises at the purchase price mentioned in the contract of sale. It concluded with this paragraph: “In the event of your failure to exercise such right of purchase the above described lease will end and determine on October 1, 1938.” Upon defendant’s failure to exercise the option to purchase, plaintiffs became entitled to the possession of the property, and the complaint pleading the foregoing stated a good and sufficient cause of action.
The judgment should be reversed on the law, with costs.
Bliss and Foster, JJ., concur; Crapser, J., dissents, with an opinion in which Schenck, J., concurs.