A careful examination of this case has led me to the conclusion that upon these two leases, taken together, and the facts found by the judge before whom this case was tried, the defendant cannot be required, either at law or in equity, to issue this third lease. Neither is the defendant liable, it seems to me, upon the clearest principles of our law, to pay the plaintiff for the buildings erected by Howard under the first lease. These brick buildings were of a permanent character and when fixed to the realty became a part of it, and they were not such buildings as a tenant, without some agreement with the landlord, would have the right to remove. The parties, however, have fixed and determined their rights under the first lease by express covenant.
The landlord has covenanted that at the expiration of the lease he will renew the lease for a second term of twenty-one years, or pay for such stone and brick buildings as may have been erected by the tenant upon the demised premises and shall be then standing thereon.
He did not agree to do both, He reserved his election to pay the appraised value of the buildings, or to issue a new lease for a second term of twenty-one years. It is. *312beyond a doubt that when the defendant had issued to the plaintiff this second lease he had fulfilled this covenant to the letter, and was under no obligation to pay for these buildings. He had his election either to grant a new lease for a second term of twenty-one years, or to pay for the buildings, and when he elected to issue the lease, and did so, no liability remained to pay for the buildings. It only remains to consider whether such liability is imposed upon him thus by any thing contained in the second lease issued by the defendant to the plaintiff.
Tbiere is nothing in the second in any way referring to the buildings erected by Howard under the first lease, and the covenant in the second lease to issue a new lease for twenty-one years longer at the expiration of that lease, or to pay the value of all such stone and brick buildings as may have been erected by the party of the second part as on the demised premises and as shall be then standing thereon, does not include the buildings erected by Howard under the first lease.
This is apparent from the plain language of the lease, and the plaintiff must so have understood it when he instituted this suit to reform it, and have a clause inserted that would render the defendant liable to pay for these buildings; but he failed to establish his claim to have this lease reformed and the court properly refused this branch of the relief. The defendant’s covenant in the second lease cannot upon any construction, be held to extend to the buildings erected by Howard under the first lease.
The length and breadth of his covenant in the second lease was either to issue a new lease for twenty-one years or pay the plaintiff the appraised value of any stone or brick buildings which the plaintiff might erect on the demised premises during the term of the said lease.
The defendant has his election whether to renew that lease for a third term of twenty-one years, or to .pay the plaintiff the value of the buildings which should have been *313erected by Mm, and be standing upon the demised premises at the expiration of/ the term. The defendant did elect, and served a written notice upon the plaintiff that he had concluded not to renew the said lease, but to pay the value of any stone or brick buildings which had been erected by the plaintiff during the term of the said lease.
The general term were, therefore, in error in requiring the defendant to issue a new lease for twenty-one years, but were right in reversing the judgment of the special term and granting a new trial.
It is true, as claimed by the defendant’s counsel, that the law imposes no obligation on a landlord to pay the tenant for buildings erected on the demised premises in the absence of an agreement to do so. (Kutter agt. Smith, 2 Wallace U. S. R., 491.) The defendant did not agree to pay the. plaintiff for these buildings erected by Howard, but did covenant to pay for those erected by the plaintiff himself and which should remain on the premises at the end of the term, and I think this covenant is broad enough to include the enlargement of these brick buildings put upon the demised premises by the plaintiff.
The finding of the referee is not inconsistent with this claim. -It is true, we find that no stone or brick buildings have been, at any time, erected upon the said premises by the plaintiff.
This is in strict accordance with the plaintiff’s evidence, for he swears the same buildings were on the premises when he purchased that are now, only that he had enlarged them.
The defendant would not be liable for ordinary repairs upon the buildings erected by Howard, but I think the enlargement of these buildings should be regarded as erections within the meaning of the defendant’s covenant- by which he agreed to pay for the buildings erected by the plaintiff if he did not renew the lease. 1 infer from the testimony of the plaintiff that he made these erections under *314the second lease, and the defendant’s covenant embraces them.
That covenant is to pay for all such stone or brick buildings as may have been erected by the party of the second part, &c., and be then standing thereon—such as shall have been erected at any time by the plaintiff and be standing upon the demised premises at the end of the term.
It follows that the special term were in error in dismissing the plaintiff’s complaint, and the general term were right in reversing that judgment, and the judgment order must be affirmed and judgment absolute be rendered for the plaintiff that he recover the value of the erections of the plaintiff in the enlargement of these buildings with the costs of suit.