Citations
- 7 N.Y.3d 472
Full opinion text
Jewett, J.
(after stating the facts.) — The decision of the main question arising in this case, must "turn upon the true construction of the words of the covenant for a breach of which this action is brought, which are, “The said party of the second part to have the refusal of the premises, at the expiration of this lease, for three years longer.” There are several decisions showing that a covenant in a lease to renew it, without providing in respect to the term to be granted, or the amount of rent to be paid, implies a renewal for the same term and rent. But a covenant to renew upon such terms as might be agreed upon is void for uncertainty. (Rutgers v. Hunter, 6 Johns. Ch. 218; Whitlock v. Duffield, 1 Hoffman Ch. 110; 4 Kent Com. 108; Abeel v. Radcliff, 13 Johns. 297; 1 Hilliard Ab., ch. 15, § 78.)
Whatever ambiguity there may be in the words of the covenant, the intention of the parties, to be collected from them, considered in connection with the whole instrument, obviously was, that the plaintiff, at his election, should have a renewal of the lease for the premises, for the further term of three years, to commence at the expiration of the existing lease, for the same annual rent as the former, payable quarter-yearly. Although the intent of the parties be in opposition to the strict letter of the contract, it must prevail, when clearly ascertained from it. *(2 Kent Com. 555; Parkhurst v. Smith, Willes 332; Hathaway v. Power, 6 Hill 453; Hobart 277.)
The plaintiff was not restricted to the time when the term granted by the lease expired, to make his élection for a renewal for the farther term; and if made, and a renewal demanded, the defendant was bound to comply with his covenant in that respect. The plaintiff, in February 1849, made his election and demanded a performance; the defendant refused, unless he would consent to take a renewal at an enhanced rent, and gave him notice that unless he would do so, the defendant would rent the premises to another; this, I think, constituted a breach of the covenant by the defendant. The taking of the lease by the plaintiff for a different term, under the circumstances, could not operate as a surrender of the first, or as a performance of the covenant by the defendant. The term of this second lease did not commence until the expiration of the first; and besides, the evidence shows that it was not intended by the plaintiff to relinquish or surrender, or by the parties that it should be accepted as a performance of the covenant, and that should be regarded as. decisive of the question. (Gybson v. Searl, Cro. Jac. 176; Van Rensselaer v. Penniman, 6 Wend. 569, 579; Bogart v. Burkhalter, 1 Denio 125.)
As to the objection made by the defendant, that there was rent in arrear, and, therefore, the plaintiff was not entitled to a further lease, the covenant being independent, the liability of the defendant for the breach of the covenant in question remained. The payment of the rent was not a condition precedent to the right of the plaintiff to a renewal of the lease under the covenant, and he might bring his action for a breach of it, although he was guilty of a default in the payment of his rent or performance of his covenant. (Dawson v. Dyer, 5 Barn. & Ad. 584.)
The measure of damages was correct. It was confined to the difference between what the plaintiff was to have paid for the rent for the term, and what he was compelled to pay under the new lease. (Masterton v. Mayor of Brooklyn, 7 Hill 61; Driggs v. Dwight, 17 Wend. 71.) The judgment should be affirmed.
Judgment affirmed-