#### Robert S. Smith, Respondent, Appellant, *v.*Max Finkelstein and Adolph Finkelstein, Copartners Doing Business as Finkelstein Bros., Appellants, Respondents.

First Department,

May 1, 1914.

Landlord and tenant — lease of window space'—-intent of parties — specifications filed by architect admissible to show intent.

The plaintiff and defendants occupied adjacent stores, in the front of both of which extended contiguous show windows, separated at the boundary line by a two-inch partition. The defendants leased to the plaintiff window space on the property occupied by him described as “front window space in the store on said premises on the westerly sid° thereof six feet wide.” The buildings of the respective parties had twelve-inch side walls, and a controversy arose as to whether the six feet of window space demised should be measured from the boundary line or from the inner portion of the defendants’ wall. On all the evidence, *held,*that the six feet demised to the plaintiff should be measured from the boundary line. *Held further,*that specifications filed with the building department by the plaintiff’s architect indicating that the six feet was to be measured from the dividing line should have been admitted in evidence as bearing upon the intent of parties.

Cross-appeals by the plaintiff, Robert S. Smith, and the defendants, Max Finkelstein and another, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of May, 1913, upon the decision of the court after a trial at the New York Special Term.

*Carlisle*Norwood, for the plaintiff.

*Nathan Burkan,*for the defendants.

McLaughlin, J.:

Plaintiff and defendants had adjoining stores on the south side of Fourteenth street, between Fifth and Sixth avenues, in the city of New York. On August 1, 1910, defendants leased to plaintiff three lofts in their building, together with a portion of their show-window space on the ground floor for a term of twelve years, eight months and twenty-eight days, from the 10th of August, 1910, at an annual rental of $7,500. Defendants delivered possession of the lofts and of certain window space, but plaintiff claims that the amount of such window *129space is not as great as called for by the lease. This action was brought to compel defendants to specifically perform by giving the space claimed and to recover damages for the withholding of the additional space. The court, after trial, granted judgment directing defendants to give one foot additional space, and awarding plaintiff six cents damages. The defendants appeal from the entire judgment and plaintiff appeals from so much as limits his damages to six cents.

The lease described the window space to be rented as “ front window space in the store on said premises on the westerly side thereof, six feet wide and of a depth equal to that of the window now occupied by the said party of the second part [plaintiff] at premises known as and by • the street number 52 West 14th Street, in the Borough of Manhattan, City of New York;” and provided, “The said demised portion of the window shall be connected with the window of the parties of the first part [defendants], divided by a partition so that the demised window space shall have only a front view but no side view.” At the time the lease was executed the show windows of plaintiff’s and defendants’ stores were contiguous and their glass fronts were in a continuous straight line parallel to and three feet eleven and one-half inches north of their building lines. The windows were separated as far as the building line by the walls of the two buildings, each of which was twelve inches thick and stood entirely on its respective lot. Between the building line and the exterior of the glass fronts the two windows were separated by a metal partition two inches thick. In allotting the six feet of space called for by the lease, defendants measured from the division line between the two buildings and erected a new partition six feet from that line in order to separate the space leased from the remainder of their window. This gave the plaintiff a show window six feet in width. Plaintiff claims that the lease provided for a six-foot strip of clear space, and for that reason it should have been measured from the inside face of defendants’ wall. The controversy, therefore, involves a strip one foot wide — the thickness of the wall — and extending from the front of the show window to the rear of it. The trial *130court adopted the plaintiff’s contention and directed the defendants to give the plaintiff an additional foot, which gives him a show window, where the wall has been removed, seven feet wide.

I am of the opinion that the trial court erred in giving the additional' foot. The six-foot space which the defendants agreed in the lease to give to the plaintiff was from the dividing line between the buildings. This seems to follow, since the parties contemplated the substantial removal of the walls of the building separating the windows. Immediately following the execution of the lease, plaintiff, with defendants’ consent, caused the iron partition and almost the entire walls between the windows and to the rear of the store, to be removed, leaving only a small • supporting pillar in the front and a slight portion of the wall in the rear. It does not appear but that plaintiff might have had the remaining parts of the wall removed if he had desired to support the ceiling in another way. The space allotted for the show window after the lease was executed was at least six feet in width from the front to the wall of the building. If plaintiff’s contention were correct, then a space of seven feet should have been allotted instead of six. This the lease did not call for.

It is true that some two years after the making of the lease the city compelled the removal of a portion of the show window which projected along the building line into the street, but that has no bearing upon the question of what the parties actually intended when the lease was made. And even after the portion of the window had been cut off the plaintiff still had — the wall of the building at this point having been removed — a show window six feet in width.

This view is confirmed by the actions of the parties themselves. The defendant Finkelstein testified, and his testimony is uncontradicted, that when the parties first agreed upon the lease they measured the six feet of the show window by stretching the tape from the end of the partition six feet to the east and made a mark on the wooden base of the window where the six feet were to end. Where the language used in a deed or lease is vague, indefinite or obscure, then the declarations and acts of the parties, as well as all the attending circumstances, may be resorted to for the purpose of ascertaining *131the intent. *(Murdock*v. *Gould,*193 N. Y. 369; *Sattler*v. *Hallock,*160 id. 291; *Harris*v. *Oakley,*130 id. 1.)

When the whole lease is here considered, and especially when considered in connection with what the parties did prior and subsequent to its execution, I have no doubt that defendants have allotted all the space they intended to and all that plaintiff expected to receive.

I am also of the opinion that there was evidence bearing upon the intent of the parties which the court erroneously excluded. Plaintiff’s architect filed with the building department specifications showing the alterations to be made by plaintiff in connection with the windows, to the effect that the six feet were to be measured from the dividing line. The specifications were excluded on the ground that they were not binding on plaintiff since they had been made by his architect. In filing the specifications the architect represented the plaintiff. His acts were, therefore, admissible in evidence. Plaintiff admitted that he gave the architect his instructions as to what was to be done. But this error did the defendants no harm because it sufficiently appeared, without this evidence, what the parties intended by the language used in the lease. Plaintiff was to have a “front window space in the store on said premises * * * six feet wide and of a depth equal to that of the window now occupied by ” him. This he now has, and for that reason the complaint should have been dismissed. That can now be done under section 1317 of the Code of Civil Procedure, and to that end a finding of fact is made to the effect that the defendants have duly performed all the terms of said lease in respect to the allotment of window space, and a conclusion of law that the defendants are entitled to judgment dismissing complaint, with costs.

The judgment appealed from, therefore, is reversed, and the complaint dismissed, with costs.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Judgment reversed and complaint dismissed, with costs. Order to be settled on notice.