It is settled law that, in the absence of a specific provision in a lease providing otherwise, the burden of paying taxes is on the landlord. (Black v. General Wiper Supply Co., 305 N. Y. 386, 392.) In this case we find that the lease does make provision for payment of taxes by the plaintiff under certain conditions. Therefore, it is necessary to refer to the particular provisions of the lease which deal with this subject and ascertain therefrom what was' the.intention of the parties, for that is what controls.
Article X of the lease, in pertinent part, provides as follows: “ In the event the real estate taxes, as hereinafter defined, payable on the leased premises during the third lease year, as hereinafter defined, shall in any subsequent lease year be greater in amount, the Tenant shall pay to the Landlord as additional rent for each subsequent lease year an amount equal to such increase in real estate taxes. In the event the leased premises are not separately assessed for the purpose of real estate taxes the increase in real estate taxes shall be computed and payable as hereinafter stated. ’ ’
Said article then further provides that, in the event of a tax increase on the total land area, the tenant should bear his proportionate share based on the land area and that ‘ ‘ Tenant shall pay to the Landlord such pro rata portion of the increase in real estate taxes as shall be determined by the application of such ratio to the amount of the increase in such real estate taxes paid by the Owner * * * of the said larger land area with which the land embraced in the leased premises or part thereof maybe assessed.” (Emphasis added.)
*463Similarly, in the following paragraph, it is provided that the tenant’s portion be based on “ the amount of the increase in real estate taxes paid by the respective owners ” (emphasis added).
Nowhere in article X, nor elsewhere in the lease, is there any indication that the parties contemplated that, at any time during the 15-year term of the lease, there would be an exempt status applicable to any then landlord. Had this been contemplated, it would have been a very simple matter to draft appropriate language to cover the contingency. The language used in article X refers to taxes actually paid by the defendant landlord.
‘1 In the case of doubt * * * the tax clause should be construed most strongly against the lessor and most favorably to the lessee.” (51 C. J. S., Landlord and Tenant, § 360, p. 1055.) It is conceded that no increase in taxes was actually paid. It would require a rewriting of the lease to fix upon the plaintiff the obligation to actually pay that which defendant might have had to pay if it were not exempt. Certainly, we cannot11 remake the lease so as to impose obligations on the tenant that the parties never had in mind ”. (Wendel Foundation v. Moredall Realty Corp., 282 N. Y. 239, 246.) This is especially so where, as here, the defendant, by reason of its tax exemption, is not paying any increase over the amount of taxes actually paid by the prior nonexempt landlord for the “ Lease Base Year ”.
I therefore dissent and vote to award plaintiff judgment, as provided in paragraph “23” of the submission.
Eager and Bastow, JJ., concur with McNally, J.; Capozzoli, J., dissents in opinion in which, Stevens, J. P., concurs.
Judgment for defendant as provided in paragraph “24” of the submission, with $50 costs and disbursements. Settle judgment.