The court delivered the main opinions in the Wray case, as follows, viz.:

The lease of 1st March, 1844, from the defendant to the plaintiff Wray, must be construed in connection with that of 1st May, 1824, from William Rhinelander, the defendant’s testator, to Ward B. Howard, of which it was a renewal. When the original lease was given, there was no buildings on the property, and it was agreed by the parties, that at the expiration of the term of twenty-one years, for which the land was demised, the lessor should at his election, either grant a new lease thereof to the lessee or his aasigns, for the further term of twenty-one years, or pay the value as stated therein, “ of all such stone and brick buildings as shall have been erected on the said hereby demised premises” by him, and provision was made for determining the amount which should be paid for rent in one case and for the buildings in the other.

Howard, the lessee entered into possession of the land, and buildings of brick were erected thereon by him during his term, and after their erection the plaintiff became the assignee of the lease and the owner of the buildings.

Before the expiration of the term and in pursuance of the right of election to renew the lease or purchase the buildings as above stated, the defendant executed to the plaintiff the lease of 1st March, 1844, at an annual rent agreed upon by the parties who were described therein. The defendant as party “of the first part,” and the plaintiff as “ party of the second part.”

*308It, after particularly describing the ‘‘ lot, piece or parcel of ground” demised, referred to it as being the same parcel of ground now under lease, made by William Rhinelander, &c., above mentioned, and the lessee among other covenants agreed on the last day of the term, or other sooner determination of the estate thereby granted to deliver up the demised premises “ within good and sufficient fence,” and it was then mutually covenanted and agreed that at the expiration of the said term, the party of the first part, &c., * *” should at their election either grant a new lease of the premises thereby demised, for the further term of twenty-one years then next ensuing, at such rent as should be determined, &c. &c., or pay unto the said party of the second part his executors, administrators, or assigns, the value in good and lawful money, of all such stone and brick .buildings as may have been erected by the said party of the second part, his executors, administrators, or assigns, on the said demised premises, and be then standing thereon; and it was provided how the rent and the value of the buildings were to be ascertained ; and it was declared that the new lease, if any one was given, should contain the like covenants and conditions as contained in that of March 1st, 1844, ‘‘except only so far as regards a further renewal of the said lease” or the payment of the value of any buildings erected and standing on the premises, and instead thereof, it should contain a provision, that all such stone and brick buildings shall be deemed the property of the party of the second part, &c., who should be at liberty within ten days after the expiration of the term, but not afterwards, to take down, remove and carry away from off said demised premises, all such stone and brick buildings and the material thereof, leaving the said premises inclosed within, good and sufficient fence as aforesaid.

It appears by the finding of the justice, who tried the issues at the circuit, that the buildings which were erected by Howard, on the ground demised during the first term, *309were standing at the expiration of the second term, and that no stone or brick buildings had been at any time erected thereon by the plaintiff.

It necéssarily follows, that when the renewal lease was given the land was already improved with buildings of the description for which compensation was provided, and it cannot reasonably be inferred that the parties, or either of them, contemplated their destruction and the erection of new buildings during the extended term. It is to be observed, and I think it is a material fact, that in referring to the value of buildings to be paid for, there is no specific restriction to such as were to be erected during the term of the new or renewal lease.

It refers to “all such stone and brick buildings as may have been erected by the said party of the second part, &c., # * on the demised premises and be then standing thereon.” That language is not such as would have been used to limit the provision to buildings to be subsequently erected. The words “as may be,” or “ as shall be” erected, would have been the appropriate terms for such limitation. If the buildings on the ground had been put up by the plaintiff himself, after he became assignee of the lease, or if Mr. Howard instead of the plaintiff, had been the lessor in the second lease, then they would have been within the strict and technical language used. The words “ may have been erected,” would have been applicable as well to those built before as to such as were built after the second lease. The only ground, therefore, for holding that the covenant does not apply to the buildings that were standing at the expiration of the second term is, that they were not put on the land by the plaintiff “ the party of the second part,” to the last lease. This is a very narrow and technical construction. In view of the fact that he became the owner of the property as assignee of the first lease, he represents Howard, the first lessee and stands in his place. He became by the assignment to him, the party thereto of the *310second part, and thus, for all practical purposes, he may be considered as such party within the meaning of the covenant. It was a matter of no importance to the defendant by whom the buildings were erected, whether by the plaintiff or by Howard. The only fact that was material to him was, that the buildings erected for which he was to pay, should be of stone or brick, and should be standing at the time he was to re-enter, or resume, possession. The object, and intent of the covenant would be effectually and fully attained, if the words “ by the said party of the second part, his executors, administrators, and assigns,” were entirely disregarded.

They may, without prejudice to the defendant, be treated as surplusage, and the omission of them would not alter or affect the meaning of the agreement in its practical operation, was to be substituted in the new lease, for that of paying Indeed, the provision for the renewal of the buildings which the value thereof, or for a further renewal, is in harmony with that construction or view of the covenant. It speaks u of any buildings erected, and standing on the premises,” constructed of stone or brick, and no reference is made to the party erecting them. The practical matters or essential requisition was, that the buildings erected, and for which compensation was to be made, should be standing at the end of the term, and that they should be built of sfone or brick.

Taking the whole tenor of the second lease, and the circumstances under which it was executed into consideration, we can appropriately say, in the words substantially of Savage, Ch. J., in Van Rensselaer’s heirs agt. Penniman, (6 Wend, p., 582,) in construing a covenant very similar to the present—that uto give a rational meaning to the words used in' the contract, requires us to say that they, include all such improvements,” (stone and brick buildings,) “ as are actually upon the premises” at the expiration of the second term.

*311The amount of rent to be paid on a renewal, and the value of the . buildings were ascertained in conformity to the requirements of the lease, and pursuant to its terms; “ the defendant duly made his election not to grant a new lease of said premises to the plaintiff, and duly notified the plaintiff of such election.” He thereby, if my construction of the covenant is correct, became liable to pay the appraised value of the buildings, and the plaintiff is entitled to that with interest.

The order appealed from, should be affirmed with costs, and under the stipulation, judgment should be given for such value of the buildings with costs.

A careful examination of this case has led me to the conclusion that upon these two leases, taken together, and the facts found by the judge before whom this case was tried, the defendant cannot be required, either at law or in equity, to issue this third lease. Neither is the defendant liable, it seems to me, upon the clearest principles of our law, to pay the plaintiff for the buildings erected by Howard under the first lease. These brick buildings were of a permanent character and when fixed to the realty became a part of it, and they were not such buildings as a tenant, without some agreement with the landlord, would have the right to remove. The parties, however, have fixed and determined their rights under the first lease by express covenant.

The landlord has covenanted that at the expiration of the lease he will renew the lease for a second term of twenty-one years, or pay for such stone and brick buildings as may have been erected by the tenant upon the demised premises and shall be then standing thereon.

He did not agree to do both, He reserved his election to pay the appraised value of the buildings, or to issue a new lease for a second term of twenty-one years. It is. *312beyond a doubt that when the defendant had issued to the plaintiff this second lease he had fulfilled this covenant to the letter, and was under no obligation to pay for these buildings. He had his election either to grant a new lease for a second term of twenty-one years, or to pay for the buildings, and when he elected to issue the lease, and did so, no liability remained to pay for the buildings. It only remains to consider whether such liability is imposed upon him thus by any thing contained in the second lease issued by the defendant to the plaintiff.

Tbiere is nothing in the second in any way referring to the buildings erected by Howard under the first lease, and the covenant in the second lease to issue a new lease for twenty-one years longer at the expiration of that lease, or to pay the value of all such stone and brick buildings as may have been erected by the party of the second part as on the demised premises and as shall be then standing thereon, does not include the buildings erected by Howard under the first lease.

This is apparent from the plain language of the lease, and the plaintiff must so have understood it when he instituted this suit to reform it, and have a clause inserted that would render the defendant liable to pay for these buildings; but he failed to establish his claim to have this lease reformed and the court properly refused this branch of the relief. The defendant’s covenant in the second lease cannot upon any construction, be held to extend to the buildings erected by Howard under the first lease.

The length and breadth of his covenant in the second lease was either to issue a new lease for twenty-one years or pay the plaintiff the appraised value of any stone or brick buildings which the plaintiff might erect on the demised premises during the term of the said lease.

The defendant has his election whether to renew that lease for a third term of twenty-one years, or to .pay the plaintiff the value of the buildings which should have been *313erected by Mm, and be standing upon the demised premises at the expiration of/ the term. The defendant did elect, and served a written notice upon the plaintiff that he had concluded not to renew the said lease, but to pay the value of any stone or brick buildings which had been erected by the plaintiff during the term of the said lease.

The general term were, therefore, in error in requiring the defendant to issue a new lease for twenty-one years, but were right in reversing the judgment of the special term and granting a new trial.

It is true, as claimed by the defendant’s counsel, that the law imposes no obligation on a landlord to pay the tenant for buildings erected on the demised premises in the absence of an agreement to do so. (Kutter agt. Smith, 2 Wallace U. S. R., 491.) The defendant did not agree to pay the. plaintiff for these buildings erected by Howard, but did covenant to pay for those erected by the plaintiff himself and which should remain on the premises at the end of the term, and I think this covenant is broad enough to include the enlargement of these brick buildings put upon the demised premises by the plaintiff.

The finding of the referee is not inconsistent with this claim. -It is true, we find that no stone or brick buildings have been, at any time, erected upon the said premises by the plaintiff.

This is in strict accordance with the plaintiff’s evidence, for he swears the same buildings were on the premises when he purchased that are now, only that he had enlarged them.

The defendant would not be liable for ordinary repairs upon the buildings erected by Howard, but I think the enlargement of these buildings should be regarded as erections within the meaning of the defendant’s covenant- by which he agreed to pay for the buildings erected by the plaintiff if he did not renew the lease. 1 infer from the testimony of the plaintiff that he made these erections under *314the second lease, and the defendant’s covenant embraces them.

That covenant is to pay for all such stone or brick buildings as may have been erected by the party of the second part, &c., and be then standing thereon—such as shall have been erected at any time by the plaintiff and be standing upon the demised premises at the end of the term.

It follows that the special term were in error in dismissing the plaintiff’s complaint, and the general term were right in reversing that judgment, and the judgment order must be affirmed and judgment absolute be rendered for the plaintiff that he recover the value of the erections of the plaintiff in the enlargement of these buildings with the costs of suit.