The relevant factual elements, including paragraph or covenant 42 of the Bank Lease are set forth in full in the majority opinion. While we can agree with the majority conclusion that the Garage Lease did not supersede the Bank Lease, nevertheless, we disagree with their conclusion that, after the execution of the Garage Lease, the landlord, pursuant to the Bank Lease and paragraph 42 thereof, was under any further obligation of performance in regard to furnishing 10 free parking spaces.
The original lease for the premises at 112 State Street contained paragraph 42 which was a promise by the then landlord (Hirschfeld) to build a garage at 104-110 State Street and to ¡ provide the bank with 10 free parking spaces, to be augmented ' by a supplemental lease of even date, which was completed. It seems obvious that paragraph 42 did not run with the land as to 104-110 State Street and was nothing more than a per- i *396sonal promise by the landlord to construct a garage building. If the landlord had failed to construct such building, the tenant bank would have, at most, an action for the abatement of the -rent under the terms of the lease as to 112 State Street or for breaches of contractual obligations.
The terms and conditions of the supplemetal lease entered into between the landlord and the bank constituted a cpvenant running with the land as to 104-110 State Street and was enforceable against that landlord. In fact, the tenant bank had two remedies: specific performance, the basis of the present action, or an action for abatement of1 the rent or for breach of contractual obligation.
When the appellant took title to 112 State Street, it assumed all of the obligations under the Bank Lease. However, there was no direct obligation by the appellant to provide parking spaces under paragraph 42 of the lease as the garage had been búilt and 10 free parking spaces had been provided to the bank finder the terms of the supplemental lease. In an action for specific performance the owner of the garage at 104-110 State Street should be and is the party to perform under the terms of the G-arage Lease. It seems apparent that the reason for the supplemental lease so far as the bank is concerned was to have an agreement which would run with the land on which the garage was constructed so as to bind the then owner of such land (Hirschfeld) and. subsequent holders of title thereto.
Upon the leases and other documentary evidence in the present case, there is no basis for finding, that, on and after the execution of the Garage Lease on May 18, 1971, in accordance with the provisions of covenant 42 of the Bank Lease, the landlord under the Bank Lease (then Hirschfeld, now appellant) had any further equitable obligation pursuant to said covenant 42 to provide any parking spaces.
The order and judgment appealed from should be modified by denying so much thereof as granted summary judgment against the Hew York State Teachers’ Retirement System and directed specific performance by it.
Staley, Jb., and Main, JJ., concur with Sweeney, J.; Heblihy, P; J., and Reynolds, J., dissent and vote to modify in an opinion by Heblihy, P. J.
Judgment affirmed, with costs.