#### Douglaston Realty Company, Respondent, *v.*Virginia Hess, Appellant.

Second Department,

February 28, 1908.

Landlord and- tenant—termination of lease — covenant to reimburse tenant for improvements — notice of sale — covenant running with, land — assignment.

A lease by which a tenant covenants to1 surrender oh receiving six months’ notice of a *bona fide*sale of the property, and on payment of the *pro rata*amount of expenditures made by .her “in repairs and improvements On the property,” should be construed to mean that the tenant was entitled to such reimbursement for changes or betterments in the existing building demised.

' Under such covenant the tenant is not bound to surrender the premises before • the expiry of the term unless notice of a salé by the lessor be given and perfected, and the *pro rata*value of the expenditures for improvements be paid or tendered. . , *1*

As said covenant related to repairs, it ran with the land, and became binding upon an assignee, though not so stated.

In any event when such covenant binds “legal representatives” it is binding upon assigns, they being included in the term. •

Appeal by the defendant, Virginia Hess, from a final order of the Municipal Court of the'city of New York, borough of Queens, entered on the 16th day of October, 1907.

*Philo P.*Safford, for the appellant.

*Bead G.*Dilworth, for the respondent.

Jenks, J,:

The covenants in the lease .up for consideration read as follows : “ And it is further agreed that the party of- the second part, *509before the expiration of the said term of Five years will, on receiving six months’ notice that a *bona fide*sale of the property has been made, surrender possession of the demised premises at the end of the six months’ notice, and on payment of *thejpr.o rata*amount of expenditures by her in repairs and improvements on the property, ■ to be paid by the party of first part, as specified.

“And the party of the first part further agrees, on termination of this lease by teason of sale of the property as referred to, prior to the termination of the term named, to reimburse the said second party for all outlays as follows: All repairs made by said party, approved in writing by the said first party, and paid for by said second party are to be refunded to second party *pro rata, ¡*that is to say: Should the expenditures amount to Two Hundred Dollars, and lease was terminated !in two years by reason of sale of property, the rebate would be at rate of Forty dollars per annum, for the unexpired term.

“ And it is further understood and agreed, that the covenants and agreements, contained in the within lease, are binding on the parties and their.legal representatives.”

The word “ improvements ” when read with its associated word “ repairs,” and with the context, and considered with reference to the subject-matter; means changes or betterments in the existing building or structure demised. *(Ames*v. *Trenton Brewing Co.,*56 N. J. Eq. 309, 317; *Wimberly*v. *Mayberry & Co.,*94 Ala. 240, 243; 14 L. R. A. 305, 308.) In the latter case the court say : “ An Improvement may be an independent structure or addition, and it' may be an addition to or mere betterment of a building or improvement already made, and not included in 1 repairs thereto.’ ”

The covenant for surrender before the expiry of the term provided only that the tenant should give up possession on receiving six' months’ notice of a *bona fide*sale at the end of six months, but it also provided "and on payment of the *pro rata*amount of expenditures by her in repairs and improvements on the property ” to be paid by the lessor.' I think that the case falls within the rule applied to the second lease m *Van Rensselaer’s Heirs*v. *Penniman*(6 Wend. 569), as stated and approved in *Matter of Coatsworth*(160 N. Y. 122), and that, therefore, the tenant was not -bound to surrender the premises before the expiry of the term of *510the lease until notice was both given and perfected and the expenditures were paid or tendered'to her..

I think that the covenant ran with. the. land, for it related to repairs and so to something *in esse. (Lametti*v. Anderson, 6 Cow. 302; affd., *sub nom. Anderson*v. Lametti, 6 Wend. 326; *Thompson*v. *Rose,*8 Cow. 266; *Verplanck*v. *Wright,*23 Wend. 510; Be*lden*v. *Union Warehouse Co.,*11 App. Div. 163, and authorities cited.) It is not essential that such a covenant should name the assigns of the covenantors. Thus m *Thompson*v. *Rose (supra)-*the court say: *“*Such a covenant to repair extends to the support of the thing demised, and is, *guadammodo,*annexed and appurtenant to it, and shall bind the assignee,.- though he be not named.” (See, too, *Denman*v. *Prince,*40 Barb. 213, 217, and authorities cited; *Winfield*v. *Henning,*21 N. J. Eq: 188; 8 Am. & Eng. Ency. of Law [2d ed.], 137,..and authorities cited.). Moreover, it is provided that the covenants and agreements shall be bi-nding,on the parties and their “legal representatives,” which may in. this case include the assigns. *(New York Mut. Life Ins. Co.*v. *Armstrong,*117 U. S. 597.) ’ The parties could have made- a new agreement as lessor and lessee which would have worked a surrender of the unexpiréd term. *(Smith*v. *Kerr,*108 N. Y. 31), but the evidence does not satisfy me that this was done. Moreover, the landlord invoked this covenant in the original lease (the term, of which was then outstanding) in order to end the tenancy. I think, however, that it is still in the power of-the landlord to demand and to compel a performance of the covenant in' question. *(Holsman*v *Abrams,*2 Duer, 435.)

- The final order must be reversed, with costs. ■

Hooker,. Gaykor, Rich and Miller, JJ., concurred.

Final order of the' Municipal Court reversed and new trial Ordered, costs to abide the event.