I can find no reason for overruling the finding of Special Term, that the letter of July 7, 1966 was sufficient to renew the old lease, the rent to be $40,000 per year. That is what plaintiff says in her letter, unless words have lost all meaning: “ I hereby exercise the option contained therein to renew the aforesaid lease for an additional term of ten (10) years commencing October 1, 1967 to and including September 30, 1977. As you know, the aforesaid lease provides for an annual rental of $40,000.” True, there was added language of a wishful nature, precatory at best, and of no legal consequence. In any event, the construction to be given the letter involves a legal, and not a factual question requiring a trial. And the landlord, impervious to her hopes, on September 29, 1967, notified her the rent was $40,000 per year. On his part, there was no misunderstanding on that score.
I further concur with the Special Term Justice that ‘£ Any equivocation is to the detriment of the -plaintiff since the rent under the old lease was $40,000 per year and plaintiff has continued to occupy the premises.” This tenant has either exercised her option and has a lease, or she is presently and will be a holdover tenant without any lease at all, for in my judgment there is nothing in the record to sustain a finding that there ever was a mutual meeting of the minds at $30,000, or at any figure other than that stated in the lease. Changes in a lease are not to be presumed or implied or accepted unless clearly within the provisions of the lease. (455 Seventh Ave. v. Hussey Realty Corp., 295 N. Y. 166.)
Finally, I think Special Term was correct in granting the landlord’s cross motion directing the removal of the tenant from the premises occupied by the tenant but not demised. The Halper affidavit which supports the declared encroachment is not refuted, and the plaintiff admits encroachment in the Tivnan affirmation of October 17,1968 referred to at page 15 of the reply brief of plaintiff which states: ‘£ With respect to the property upon which plaintiff now allegedly encroaches, this is indeed minuscule and does not comprise a very substantial portion of the • premises.” (Emphasis supplied.)
Accordingly, I would affirm.
*279Eager, Nunez and McNally, JJ., concur with Stevens, P. J.; MoGivern, J., dissents in opinion.
Order and judgment (one paper) entered on August 29, 1968, reversed, on the law, without costs and without disbursements, judgment vacated, and the matter remanded for trial on all of the issues as set forth in the majority opinion of this court.