I am in accord with my associates in the conclusion that no partnership relation arose by virtue of the lease between the parties; but I cannot follow them in holding that the proceeding was not prematurely brought. The result reached by them — meritorious though it may be — is not, in my opinion, within our power to attain. The parties themselves made an elaborate agreement of lease defining their mutual rights and obligations concerning an important business enterprise in which they were to be mutually concerned for a term of ten years with a privilege of a renewal for five years longer at the option of the tenant. That which they deliberately chose to stipulate is binding upon them. The court cannot change the terms of the agreement nor substitute a new one in its place. Construction —not creation — of the contract is the function of the court. The language employed by the parties must be given its usual interpretation, and, as I read the mooted clause, the language is entirely plain and unambiguous. When the proceeding was begun some of the rentals from *122subtenants (in seven eases out of fourteen) had not become due and it followed that the rentals had not then been collected from the occupants of all the bungalows for the year in question. Hence there was no default, and the court below was without jurisdiction to grant a final order in summary proceedings terminating the relation of landlord and tenant as upon the tenant’s failure to pay the rent reserved. I shall not pursue the subject further, except to observe that, even if the lease could be deemed to be ambiguous on the point in question, any doubt should be resolved in favor of the tenant who accepted the lease rather than in favor of the landlord who prepared and proffered it
Order affirmed, with costs.