The right of a court of equity to set aside an award for corruption, partiality, or palpable mistake of law or fact, is well settled (2 R. S. 544, § 22; Herrick v. Blair, 1 Johns. Ch. 101; Underhill v. Van Cortlandt, 2 Johns Cas. 365 ; Perkins v. Giles, 50 N. Y. 232; Burnside v. Whitney, 21 N. Y. 148; Perkins v. Giles, 53 Barb. 342). The learned judge who tried this cause has found as a question of fact, that the arbitrators who made the award in question were, and each of them was, guilty of want of care, misjudgment, and partiality in making' the same. Mersereau, in anticipation of his selection as an arbitrator, examined the premises in dispute, in company with the defendant, and admits that he had formed an opinion upon the subject without any notice to or conference with his co-arbitrator. From this fact alone evident partiality might be inferred.
The learned judge has also found as a question of fact that the award was excessive and exorbitant, and that the parties who united in it were guilty of misjudgment and partiality on this ground.
These conclusions, based as they are upon evidence, must be regarded as final, in the absence of any gross error of either law or fact.
The award being thus impeached and set aside for sufficient cause, the parties to it are relegated to their original rights under the lease of the premises in question (Rathbone v. Warren, 10 Johns. 586; Miller v. McCan, 7 Paige, 451; Kershaw v. Thompson, 4 Johns. Ch. 609; Frost v. Myrick, 1 Barb. 362).
*410The issues raised by the pleadings fully presented all matters of difference which might arise under said lease, and conferred upon the court below jurisdiction to adjudicate thereon.
The parties being thus before the court in the precise attitude of suitors, between whom no proceedings under an arbitration and award existed, the first question to be considered is the construction of that covenant of said lease which provides that the lessee therein named may, at his own. cost, talce down and remove from the lot of land in said lease described, the building now (then) standing thereon, or such part thereof as he should elect, and erect i/n place thereof a good and substantial building, &c.; the materials of the old building in such a case to belong to said lessee. The. terms “ take down and remove,” “ and erect upon said land in place thereof,” evidently refer to a complete destruction and removal of said building, or some part thereof, from its foundation. No provision is made for any alterations or improvements in the original structure, or payment therefor, whatever their cost or character (Pike v. Butler, 4 N. Y. 360). A further covenant in said lease provides that the value of the building so to be erected on said lands shall be ascertained, &c. I think the conclusion of the court below upon this point was correct, and that the defendant was only entitled to the value of the building erected on the rear of said lot. Such value has been found,, upon conflicting evidence, to be the sum of $2,603, and must be accepted, for the purposes of this appeal, as correct.
I fail to recognize, however, the right of the plaintiff to reduce said amount by a credit of $3,547 94, and have judgment for the excess.
The sum last named was adjudged to be a reasonable allowance for the use and occupation of said premises for one year. The lease expired May 1, 1872, and from that time until May 5th, 1873, the said amount of rent was claimed and allowed. By the terms of said lease the defendant was not to be compelled to surrender possession of the premises until the payments for which it provided were made or tendered. During the year fur which rent was allowed, the defendant, so far as the evidence shows, had a mere naked possession of the premises, for the *411purpose of security only. He was liable at any moment to be called upon to surrender such possession upon payment or tender. It does not appear that any such tender was made, or that the defendant desired or received any pecuniary benefit from said premises during the year in question. The ruling upon this point, charging the defendant with the said sum of $3,547 94, was in my judgment erroneous, and for this reason a new trial should be ordered.