The court delivered the main opinions in the Wray case, as follows, viz.:
Lott, J.The lease of 1st March, 1844, from the defendant to the plaintiff Wray, must be construed in connection with that of 1st May, 1824, from William Rhinelander, the defendant’s testator, to Ward B. Howard, of which it was a renewal. When the original lease was given, there was no buildings on the property, and it was agreed by the parties, that at the expiration of the term of twenty-one years, for which the land was demised, the lessor should at his election, either grant a new lease thereof to the lessee or his aasigns, for the further term of twenty-one years, or pay the value as stated therein, “ of all such stone and brick buildings as shall have been erected on the said hereby demised premises” by him, and provision was made for determining the amount which should be paid for rent in one case and for the buildings in the other.
Howard, the lessee entered into possession of the land, and buildings of brick were erected thereon by him during his term, and after their erection the plaintiff became the assignee of the lease and the owner of the buildings.
Before the expiration of the term and in pursuance of the right of election to renew the lease or purchase the buildings as above stated, the defendant executed to the plaintiff the lease of 1st March, 1844, at an annual rent agreed upon by the parties who were described therein. The defendant as party “of the first part,” and the plaintiff as “ party of the second part.”
*308It, after particularly describing the ‘‘ lot, piece or parcel of ground” demised, referred to it as being the same parcel of ground now under lease, made by William Rhinelander, &c., above mentioned, and the lessee among other covenants agreed on the last day of the term, or other sooner determination of the estate thereby granted to deliver up the demised premises “ within good and sufficient fence,” and it was then mutually covenanted and agreed that at the expiration of the said term, the party of the first part, &c., * *” should at their election either grant a new lease of the premises thereby demised, for the further term of twenty-one years then next ensuing, at such rent as should be determined, &c. &c., or pay unto the said party of the second part his executors, administrators, or assigns, the value in good and lawful money, of all such stone and brick .buildings as may have been erected by the said party of the second part, his executors, administrators, or assigns, on the said demised premises, and be then standing thereon; and it was provided how the rent and the value of the buildings were to be ascertained ; and it was declared that the new lease, if any one was given, should contain the like covenants and conditions as contained in that of March 1st, 1844, ‘‘except only so far as regards a further renewal of the said lease” or the payment of the value of any buildings erected and standing on the premises, and instead thereof, it should contain a provision, that all such stone and brick buildings shall be deemed the property of the party of the second part, &c., who should be at liberty within ten days after the expiration of the term, but not afterwards, to take down, remove and carry away from off said demised premises, all such stone and brick buildings and the material thereof, leaving the said premises inclosed within, good and sufficient fence as aforesaid.
It appears by the finding of the justice, who tried the issues at the circuit, that the buildings which were erected by Howard, on the ground demised during the first term, *309were standing at the expiration of the second term, and that no stone or brick buildings had been at any time erected thereon by the plaintiff.
It necéssarily follows, that when the renewal lease was given the land was already improved with buildings of the description for which compensation was provided, and it cannot reasonably be inferred that the parties, or either of them, contemplated their destruction and the erection of new buildings during the extended term. It is to be observed, and I think it is a material fact, that in referring to the value of buildings to be paid for, there is no specific restriction to such as were to be erected during the term of the new or renewal lease.
It refers to “all such stone and brick buildings as may have been erected by the said party of the second part, &c., # * on the demised premises and be then standing thereon.” That language is not such as would have been used to limit the provision to buildings to be subsequently erected. The words “as may be,” or “ as shall be” erected, would have been the appropriate terms for such limitation. If the buildings on the ground had been put up by the plaintiff himself, after he became assignee of the lease, or if Mr. Howard instead of the plaintiff, had been the lessor in the second lease, then they would have been within the strict and technical language used. The words “ may have been erected,” would have been applicable as well to those built before as to such as were built after the second lease. The only ground, therefore, for holding that the covenant does not apply to the buildings that were standing at the expiration of the second term is, that they were not put on the land by the plaintiff “ the party of the second part,” to the last lease. This is a very narrow and technical construction. In view of the fact that he became the owner of the property as assignee of the first lease, he represents Howard, the first lessee and stands in his place. He became by the assignment to him, the party thereto of the *310second part, and thus, for all practical purposes, he may be considered as such party within the meaning of the covenant. It was a matter of no importance to the defendant by whom the buildings were erected, whether by the plaintiff or by Howard. The only fact that was material to him was, that the buildings erected for which he was to pay, should be of stone or brick, and should be standing at the time he was to re-enter, or resume, possession. The object, and intent of the covenant would be effectually and fully attained, if the words “ by the said party of the second part, his executors, administrators, and assigns,” were entirely disregarded.
They may, without prejudice to the defendant, be treated as surplusage, and the omission of them would not alter or affect the meaning of the agreement in its practical operation, was to be substituted in the new lease, for that of paying Indeed, the provision for the renewal of the buildings which the value thereof, or for a further renewal, is in harmony with that construction or view of the covenant. It speaks u of any buildings erected, and standing on the premises,” constructed of stone or brick, and no reference is made to the party erecting them. The practical matters or essential requisition was, that the buildings erected, and for which compensation was to be made, should be standing at the end of the term, and that they should be built of sfone or brick.
Taking the whole tenor of the second lease, and the circumstances under which it was executed into consideration, we can appropriately say, in the words substantially of Savage, Ch. J., in Van Rensselaer’s heirs agt. Penniman, (6 Wend, p., 582,) in construing a covenant very similar to the present—that uto give a rational meaning to the words used in' the contract, requires us to say that they, include all such improvements,” (stone and brick buildings,) “ as are actually upon the premises” at the expiration of the second term.
*311The amount of rent to be paid on a renewal, and the value of the . buildings were ascertained in conformity to the requirements of the lease, and pursuant to its terms; “ the defendant duly made his election not to grant a new lease of said premises to the plaintiff, and duly notified the plaintiff of such election.” He thereby, if my construction of the covenant is correct, became liable to pay the appraised value of the buildings, and the plaintiff is entitled to that with interest.
The order appealed from, should be affirmed with costs, and under the stipulation, judgment should be given for such value of the buildings with costs.