Mullan, J.:
In so far as this court may be permitted to concern itself, much of the law of the case has been made for us by our holding when the action was before us on the prior appeal (105 Misc. 185). Our first task, therefore, is to ascertain what that holding was. As I read the opinion of Judge, then Mr. Justice, Lehman, I find no difficulty in learning what it was the intention of this court to bold. The peculiar, and in some respects anomalous, agreement of the parties, ihade up in two papers that were construed together as the memoralization of a single set of engagements, presented quite obvious difficulties. It was plain that it was the plaintiff’s desire to insure that she receive a certain definitely fixed net return, and that the defendant would have to take a mere chance of the owner’s making repairs or alterations. The ruling was that she had accomplished her purpose. After remarking that ordinarily applicable rules of law must be ignored whenever parties themselves agree upon their respective rights and liabilities, Judge Lehman said that “the parties intended and understood that the tenant [defendant] was not bound to make any substantial repairs, and that if it became impossible to use the premises by reason of failure to make such repairs when required, the tenant was no longer bound to pay the agreed rental or compensation for the premises. * * * It was the intention of the parties that the plaintiff [landlord] should transfer to the defendant all the rights which the plaintiff had in the premises and that the defendant should accept all the burdens imposed upon the plaintiff in the lease to her. * * * As between the plaintiff and the defendant the plaintiff did not * * * assume as landlord the obligation to make such repairs but it is significant that the plaintiff did not assume any obligation or make any affirmative covenant of any kind * * * except the obligation to exercise an option for the extension of her own term. It is quite evident that it was the intent of the parties that the plaintiff should transfer her rights and interest in the premises but that she should not on her part assume any affirmative obligations as landlord.” Not merely the excerpts I have quoted, but all the expressed rabiones decidendi appear to me to point unequivocally to an intention to rule that, as between plaintiff and defendant, the full measure of monetary harm that could befall plaintiff in case of a vacation of the sort that occurred, was the loss of a tenant and the rent that tenant would otherwise thereafter have been compelled to pay during the term of the lease. In view of the very extended treatment by Judge Lehman of the rights and liabilities of the parties arising out of the failure to make the repairs in question, and the repeated reference to the fact that plaintiff was under no duty in respect [373]*373of repairs, it is inconceivable that there was any intention to leave open the question whether or not it was the duty of the plaintiff to call upon her lessor to make the repairs for the benefit of the defendant, her lessee. It is true that the counterclaim was drawn upon the theory that plaintiff had obligated herself to make the repairs, and not upon the theory that it was merely her duty to endeavor to cause her lessor to make the repairs. Nevertheless, Judge Lehman’s treatment of the case broadly covered the substantive rights and obligations of the parties, and he made no reference to any limitations or difficulties created by the form of the counterclaim. It seems to me, therefore, to be clear that it was intended to rule, and that this court did rule, that no duty of any sort rested upon plaintiff in respect of repairs. If that were the ruling, we of this court are not free to question it. Mr. Justice Bijur, as it seems to me, is in effect proceeding upon the theory that it is open to us to pass upon the question as if it were presented, here in this case for the first time. Under what I consider the law of the case that is at present binding upon this court, I am of the opinion that it was not the duty of the plaintiff to take any steps to induce or compel her lessor, the owner, to five up to its engagement with her to make the repairs that were ordered by the Pennsylvania authorities. Assuming, however, that I am in error in considering that we are not at liberty to pass upon the question of law hereinabove referred to, I am of the opinion that the proofs contained in the record now before us were not only erroneously received, but would not sustain the judgment even if they had been properly received. The defendant, in drafting its counterclaim, had relied explicitly and entirely upon a direct and express covenant on plaintiff’s part to make the repairs in question. The decision of this court, as expressed through Judge Lehman, having compelled the defendant to abandon that claim, the defendant was left with something that was entitled a counterclaim, but which had been stripped bare of its contents. The plaintiff had accepted the defeat she had sustained at our hands in respect of her own cause of action. The litigation thus was reduced to a mere shell, being kept alive only by the summons, the appearance, and the skeleton of a counterclaim. With what remained of the controversy in that condition, the defendant caused to be brought on for a new trial, before a new referee, what it pleased to consider the “ action,” in which, as upon a supposed counterclaim, it was the prosecuting suitor. No attempt had been made, or was ever made, by the defendant to procure an amendment of the counterclaim we had held to be bad. Quite obviously, as there were no issues, there could, properly speaking, be no trial, and yet the [374]*374simulacrum of a trial was solemnly proceeded with. Over the objection of the plaintiff, the defendant introduced proofs of the damage caused it by being compelled to vacate, and proofs that might possibly have been admissible to show some breach of duty on plaintiff’s part if one could only know what it was that, according to defendant, plaintiff did that she should not have done, or that she failed to do that she should have done. It was precisely as if a plaintiff had come into court without ever having served a complaint. Furthermore, the most that I have been able to gather from the arguments of defendant’s counsel upon the hearings reported in the record before us, and upon the argument and reargument here, is that the defendant makes the very general claim that the plaintiff did not act, in relation to the making of the repairs, in the way in which she ought to have acted. At no time has there been offered or suggested on behalf of defendant any definite formulation, in terms of ultimate fact, of the claim it stood upon at the hearings, or now desires to stand upon. Mr. Justice Bijur is of the opinion that we should exercise the right of an intermediate appellate court to conform the pleadings to the proofs. In the first place, conformation necessarily connotes the existence of a pleading, and there is here no original pleading, using that term in its real sense, to be conformed. In the second place, assuming that the device of conformation may be availed of to the extent of wholly creating a set of pleadings, what allegations would we, by that process, be setting up? As I have said, no statement of plaintiff’s duty and its breach has come from defendant, and I find none in Mr. Justice Bijur’s opinion. My learned brother does indeed say, in a very general way, that the plaintiff breached because “
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Mullan, J.:
In so far as this court may be permitted to concern itself, much of the law of the case has been made for us by our holding when the action was before us on the prior appeal (105 Misc. 185). Our first task, therefore, is to ascertain what that holding was. As I read the opinion of Judge, then Mr. Justice, Lehman, I find no difficulty in learning what it was the intention of this court to bold. The peculiar, and in some respects anomalous, agreement of the parties, ihade up in two papers that were construed together as the memoralization of a single set of engagements, presented quite obvious difficulties. It was plain that it was the plaintiff’s desire to insure that she receive a certain definitely fixed net return, and that the defendant would have to take a mere chance of the owner’s making repairs or alterations. The ruling was that she had accomplished her purpose. After remarking that ordinarily applicable rules of law must be ignored whenever parties themselves agree upon their respective rights and liabilities, Judge Lehman said that “the parties intended and understood that the tenant [defendant] was not bound to make any substantial repairs, and that if it became impossible to use the premises by reason of failure to make such repairs when required, the tenant was no longer bound to pay the agreed rental or compensation for the premises. * * * It was the intention of the parties that the plaintiff [landlord] should transfer to the defendant all the rights which the plaintiff had in the premises and that the defendant should accept all the burdens imposed upon the plaintiff in the lease to her. * * * As between the plaintiff and the defendant the plaintiff did not * * * assume as landlord the obligation to make such repairs but it is significant that the plaintiff did not assume any obligation or make any affirmative covenant of any kind * * * except the obligation to exercise an option for the extension of her own term. It is quite evident that it was the intent of the parties that the plaintiff should transfer her rights and interest in the premises but that she should not on her part assume any affirmative obligations as landlord.” Not merely the excerpts I have quoted, but all the expressed rabiones decidendi appear to me to point unequivocally to an intention to rule that, as between plaintiff and defendant, the full measure of monetary harm that could befall plaintiff in case of a vacation of the sort that occurred, was the loss of a tenant and the rent that tenant would otherwise thereafter have been compelled to pay during the term of the lease. In view of the very extended treatment by Judge Lehman of the rights and liabilities of the parties arising out of the failure to make the repairs in question, and the repeated reference to the fact that plaintiff was under no duty in respect [373]*373of repairs, it is inconceivable that there was any intention to leave open the question whether or not it was the duty of the plaintiff to call upon her lessor to make the repairs for the benefit of the defendant, her lessee. It is true that the counterclaim was drawn upon the theory that plaintiff had obligated herself to make the repairs, and not upon the theory that it was merely her duty to endeavor to cause her lessor to make the repairs. Nevertheless, Judge Lehman’s treatment of the case broadly covered the substantive rights and obligations of the parties, and he made no reference to any limitations or difficulties created by the form of the counterclaim. It seems to me, therefore, to be clear that it was intended to rule, and that this court did rule, that no duty of any sort rested upon plaintiff in respect of repairs. If that were the ruling, we of this court are not free to question it. Mr. Justice Bijur, as it seems to me, is in effect proceeding upon the theory that it is open to us to pass upon the question as if it were presented, here in this case for the first time. Under what I consider the law of the case that is at present binding upon this court, I am of the opinion that it was not the duty of the plaintiff to take any steps to induce or compel her lessor, the owner, to five up to its engagement with her to make the repairs that were ordered by the Pennsylvania authorities. Assuming, however, that I am in error in considering that we are not at liberty to pass upon the question of law hereinabove referred to, I am of the opinion that the proofs contained in the record now before us were not only erroneously received, but would not sustain the judgment even if they had been properly received. The defendant, in drafting its counterclaim, had relied explicitly and entirely upon a direct and express covenant on plaintiff’s part to make the repairs in question. The decision of this court, as expressed through Judge Lehman, having compelled the defendant to abandon that claim, the defendant was left with something that was entitled a counterclaim, but which had been stripped bare of its contents. The plaintiff had accepted the defeat she had sustained at our hands in respect of her own cause of action. The litigation thus was reduced to a mere shell, being kept alive only by the summons, the appearance, and the skeleton of a counterclaim. With what remained of the controversy in that condition, the defendant caused to be brought on for a new trial, before a new referee, what it pleased to consider the “ action,” in which, as upon a supposed counterclaim, it was the prosecuting suitor. No attempt had been made, or was ever made, by the defendant to procure an amendment of the counterclaim we had held to be bad. Quite obviously, as there were no issues, there could, properly speaking, be no trial, and yet the [374]*374simulacrum of a trial was solemnly proceeded with. Over the objection of the plaintiff, the defendant introduced proofs of the damage caused it by being compelled to vacate, and proofs that might possibly have been admissible to show some breach of duty on plaintiff’s part if one could only know what it was that, according to defendant, plaintiff did that she should not have done, or that she failed to do that she should have done. It was precisely as if a plaintiff had come into court without ever having served a complaint. Furthermore, the most that I have been able to gather from the arguments of defendant’s counsel upon the hearings reported in the record before us, and upon the argument and reargument here, is that the defendant makes the very general claim that the plaintiff did not act, in relation to the making of the repairs, in the way in which she ought to have acted. At no time has there been offered or suggested on behalf of defendant any definite formulation, in terms of ultimate fact, of the claim it stood upon at the hearings, or now desires to stand upon. Mr. Justice Bijur is of the opinion that we should exercise the right of an intermediate appellate court to conform the pleadings to the proofs. In the first place, conformation necessarily connotes the existence of a pleading, and there is here no original pleading, using that term in its real sense, to be conformed. In the second place, assuming that the device of conformation may be availed of to the extent of wholly creating a set of pleadings, what allegations would we, by that process, be setting up? As I have said, no statement of plaintiff’s duty and its breach has come from defendant, and I find none in Mr. Justice Bijur’s opinion. My learned brother does indeed say, in a very general way, that the plaintiff breached because “ she not only declined to require the necessary repairs to be made, but asserted * * * that the defendant was bound to make them itself.” Plainly, the mere erroneous assertion of plaintiff that it was defendant’s duty to make the repairs, did not give the defendant a cause of action. Plainly, too, plaintiff’s failure to “ require ” her lessor, the owner of the building, to make the repairs, was not a breach of duty. “ To begin with, the meaning of the word ‘ require ’ is, in the circumstances we are dealing with, not at all clear.” If it refers to plaintiff’s possible use of her practical rights as a stockholder in the owning corporation, the answer is, as Mr. Justice Bijur himself'points out, that that stock ownership is an immaterial fact. If it refers to a supposed duty of plaintiff to compel the owner to make the repairs, by resort to legal action, my answer is that there is no form of action with which I am familiar by which that compulsion could have been achieved. The law of Pennsylvania governs this case, and there was no proof that in that [375]*375State specific performance would lie. In this State it is well settled that specific performance will not lie to compel the making of repairs under a covenant in a lease (Beck v. Allison, 56 N. Y. 366); and that would appear to be the rule generally prevalent throughout the country. (5 Pom. Eq. Juris. [4th ed.] § 2182.) And it is to be remarked, in passing, that no suggestion is made that the action of specific performance could have been availed of. I think it is very plain that the most that plaintiff could have done toward compulsion would have been to bring suit for damages for the non-making of the repairs, in the hope of thus prodding her lessor into a belated willingness to make the repairs; and nobody contends that that was the measure of plaintiff’s duty. I do not pretend to say that, were it not for our prior holding, the facts in proof would not warrant the making of some sort of claim of breach of duty on plaintiff’s part in respect of repairs. I insist merely that no valid claim of such a breach has thus far been made. Furthermore, even if we were able to discern some possible grounding of a claim upon which defendant could stand, I think that for us to create, in such a situation as is before us, issues of our own choosing, and date them back by the conformation process, would not only be obviously unfair to the plaintiff, but it would not even be fair to the defendant as the latter might not care to stand upon the issues we should create in its interest.
It seems to me to be abundantly clear (1) that the plaintiff was under no duty whatsoever to the defendant in respect of repairs, and (2) that the conformation device may not be resorted to, for the reasons stated. Accordingly I vote for reversal of the judgment and the dismissal of the counterclaim.
Motion for reargument granted, and upon reargumeht order of this court dated November 11, 1924, vacated, judgment reversed, with costs, and judgment directed for plaintiff dismissing the counterclaim, with costs.
Guy, J., concurs; Bijur, J., dissents in opinion.