The effect which the *40defendant insists should be given to the omission in the second lease of the condition in respect to a further renewal or the payment- of the value of the building; that is, that this omission makes it obligatory under the second lease that the plaintiffs should give a lease for a third term of twenty-one years; and at the expiration of the third term, give a further lease for a fourth term of like duration, provided a dwelling-house should have been erected of three stories or more in height, which should-then be standing, or pay the just and full value of the said dwelling-house,—4s what, in my judgment, was never contemplated by the parties who entered into the first lease, being in no way deducible from the language of that instrument.
What the parties meant by the language employed was, that if the plaintiff did not, at the expiration of the first lease, give a second one for twenty-one years, they should pay for the iw-story building, for the"erection of which provisions had been made, and that if a dwelling-house of three or more stories in height should be erected and be standing at the expiration of the second lease, they should give a further lease for twenty-one years or pay for that dwelling-house.
It was, in the first place, provided in the original instrument, that if the tenant should, within the first seven years, of the term, or if the plaintiffs should consent thereto in writing then at any time during the residue of the term, erect a good and substantial house of brick or stone, or one with a brick or stone front, which should be two stories or more in height, the plaintiffs should either pay the just and full" value of that building or give a second lease for the like term of twenty-one years. In the second place, it was provided that if, instead of paying for the building, the plaintiffs should elect to give a further lease for twenty-one years, that then the new lease should contain the like covenants, conditions and provisions as the first lease, except so far as regarded a further renewal of the first lease, and the payment of the value of any house or building that might be erected ;—for the obvious reason that in the event of the plaintiffs determining to give a new lease, *41the parties had provided in the instrument what should take place at the expiration of the second lease in respect to a third lease, which was this: that there should be after the expiration of the second term a further renewal for twenty-one years, making sixty-three years in all, if there should be erected upon the lot, during the term demised, and it should be standing at the end of the second lease, a good and substantial dwelling-house three stories or more in height, constructed as the law required in respect to dwelling-houses south of Canal street, or else that the plaintiffs should pay the just and full value of that dwelling-house. It was also further provided, that in case of the granting of any such third lease, the augmentation of rent, if any, should be determined by arbitrators; and that if the plaintiffs did not agree to that further renewal, that then the value of the three-story dwelling-house should in like manner be ascertained by arbitration.
This is, I think, the plain meaning of these provisions in the original lease. They provide for the contingency of two renewals and no more, neither of which, however, was obligatory upon the plaintiffs, they having the option to pay for the iwo-story house instead of giving the first renewal, or to pay for the three-story dwelling-house instead of giving the second renewal—the parties having entered into these covenants in contemplation of the existence of the first of these structures at the end of twenty-one years, or of the existence of the other at the end of forty-two years, if the original lease was renewed. There is no reference to a third renewal, nor anything in the language from which it can be inferred that it was contemplated by either party. The first provision is for a renewal of the term “ hereby demised,” which is a renewal of the original lease, for a further term of twenty-one years; and the next provision is for a further renewal of the said lease for a term of twenty-one years '■‘•from and after the expiration of the said second term.” That is all there is in respect to renewals, and I wholly fail to see how it is possible to make out of this language an obligation, as Judge Robinson holds, to give a lease .absolutely for a third term *42without any further condition either as to a further renewal or as to a building, or, as the defendant claims, to give such a lease, and also a lease for a fourth term, or pay then for the three-story dwelling-house.
The defendant claims that the use of the words “ in all cases,” shows that there was to be a renewal for a fourth term or else the payment for the three-story dwelling-house. The language of this part of the first lease is “ providing ” (that is, providing in the second lease), “ for the further renewal of the said lease, &c., * * for the further and like term of twenty-one years, from and after the expiration of the said second term, &c., &c., * * * in all cases in which there shall have been erected during the term hereby demised, and shall then be standing on the said demised premises, a good and substantial dwelling-house, being three or more stories in height,” &c., &c. * * * It is not very clear what the parties meant in this conveyance by the words 11 in all cases; ” but the obscurity is not cleared up by the construction which the defendant puts upon the words. My interpretation is that what was meant by them was—in all cases—whether a tliree-story dwelling-house, as specified, is erected during the first term instead of the two-story house, or if a two-story house has been erected during the first term and a three-story dwelling-house is afterwards erected during the second term, and that dwelling-house is standing at the end of the second term; then the plaintiff shall either pay for that dwelling-house or give a lease for a third term of twenty-one years.
The tenant was not restricted to the putting up of a two-story house during the first term. The words were “ a house of two or more stories,” so that he might put up one of three stories or more; nor was he restricted as to the kind of house, except that it was to be of brick or stone, or with a brick front, and he was consequently at liberty, if he thought proper to do so, to put up, during the first term', a dwelling-house of three stories or more in all respects conforming to the law respecting buildings upon Broadway south of Canal street, and if he had done so the plaintiffs, at the end of the first term, would have been equally bound to pay for it or *43give a lease for a second term, as if he had erected simply a two-story house of any kind of brick or stone, or with a brick front. What the plaintiff evidently had in view was the improvement of his property, and whilst securing the defendant by the covenant for the payment of the value of the building that m.ight be upon the premises at the end of the lease, the inducement of a third term of twenty-one years was held out if the tenant put a dwelling-house of three stories or more in height upon the lot, or the payment of the first and full value of the dwelling-house at the end of the second term. Whatever he did, then, in ‘ all cases ’ if a dwelling-house of three or more stories in height was standing at the end of the second term, the plaintiff was either to pay for it or give 'him a lease for a further term of twenty-one years. But whatever construction may be put upon these words “ in all cases,” they are to be read in connection with the whole provision, and that provision clearly and distinctly declares that the further lease, unless the plaintiff pay'the just and full value of the dwelling-house, if one has been erected and is then standing, is a lease for twenty-one years, from and after the expiration of the second lease, and there is no pro vision in the original instrument for anything beyond that.
For these reasons I am of opinion that the judgment upon the demurrer should be reversed.
Van Hoesen, J., concurred.
Judgment reversed.