Heffernan, J.
This is a certiorari proceeding to review a final determination of the State Tax Commission assessing a mortgage tax, payable upon the recordation of a certain written instrument.
Since the institution of this proceeding Charles B. Rogers, one of the petitioners, died, and his executors have been substituted in bis place.
The facts are not in dispute. Mr. Rogers and the late Mr. Justice DeAngelis were trustees under the will of Elizabeth B. Rogers, the former’s mother. Mr. Rogers was president of the First National Bank of Utica, which institution was later named First National Bank and Trust Company of Utica and is now known as First Citizens Bank and Trust Company of Utica. In 1922 the bank desired to change its location. Apparently it had several locations -under consideration. A site known as the Calder and Stewart properties was acceptable. In a proceeding for confirmation of the lease and agreement subsequently made the bank’s president testified that while the bank approved this site it “ considered the cost of the property too great for the erection thereon of such a building as it desired to put up if it was obliged to pay for the property immediately, but it was willing to lease the properties for a long term of years and erect its building thereon during the term providing it could purchase the land at the end of the term at its specified cost.” The owners of these properties were -unwilling to make such an arrangement. The trustees, however,'according to the testimony of Mr. Rogers, considering “ the situation as a favorable opportunity for seeming an exceptionally safe and profitable long term investment,” agreed with the bank that they would acquire the properties from the owners and lease them to the bank for ninety-nine years at an annual rental netting the trustees five per cent on the cost of the property, provided the bank would agree to erect a building of the value of at least $800,000, and would agree to purchase the land at its cost at the end of the term.
[469]*469The trustees, as such, acquired title to the Calder and Stewart properties at a cost of $800,000 and made, what Rogers described as, a “ lease and agreement for the sale of the leased premises ” with the bank. The consideration therefor, as expressed in the instrument, is “the rents, covenants and agreements hereinafter mentioned, reserved and contained.”
This instrument was executed on July 15, 1922, by the trustees and on behalf of the bank; pursuant thereto the properties were leased by the trustees to the bank for a term of ninety-nine years from July 15, 1922, at a yearly rent of five per cent upon the sum of $800,000, payable in quarterly installments. The bank agreed to construct a building on the land of the value of at least $800,000 and to pay all taxes, assessments, insurance, etc., and expressly stipulated the annual rental of $40,000 should be a net payment “ with no deduction for taxes now imposed or which may be imposed by future legislation, Federal, State or municipal, during the life of this lease.” Finally, the parties incorporated in the instrument a provision whereby the trustees bound themselves to sell, and the bank to buy, at the end of the term, all of the interest of the trustees in the premises for the sum of $800,000.
After the lease and agreement was confirmed the bank, evidently as part of its plan for the acquisition and development of the property, assigned it to the co-petitioner, First National Holding Corporation, which concern erected on the premises a fourteen-story building at a cost of at least $1,200,000, and sublet the first four floors of such building to the bank.
The instrument was recorded in the office of the clerk of the county of Oneida on September 5, 1922, without payment of a mortgage tax. The Tax Commission, after an examination of the mortgage tax records of Oneida county concluded, on April 26, 1937, that the instrument was taxable. Thereafter a hearing on the matter was duly held pursuant to notice and on July 7, 1937, the Commission made its final determination which is the subject of this review.
By such determination the Commission ruled that the instrument was subject to a mortgage tax as an executory contract of sale under which the vendee had or was entitled to possession pursuant to section 250 of the Tax Law; that the amount of tax due at the time of recordation was $4,000, which remained unpaid, and that, because of no bad faith or willful evasion of tax existed, penalties in excess of the statutory minimum should be remitted. The amount of tax and statutory penalties was paid under protest under date of July 30, 1937.
[470]*470The petitioners urge that the instrument in question is separable into two distinct contracts; one, a ninety-nine-year lease under which alone the bank is in possession, and the other an executory contract of sale with no provision for present possession.
A mortgage is defined as an instrument “ which imposes a lien on or affects the title to real property, notwithstanding that such property may form a part of the security for the debt or debts seemed thereby.” (Tax Law, § 250.) That section specifically provides that “ Executory contracts for the sale of real property under which the vendee has or is entitled to possession shall be deemed to be mortgages for the purposes of this article and shall be taxable at the amount unpaid on such contracts.”
The tax is imposed upon the mortgage, is computed upon the principal debt or obligation secured thereby (Tax Law, § 253), and is payable at the time of recordation of the instrument (Tax Law, § 257).
If the agreement in question is an executory contract for the sale of real property under which the vendee has or is entitled to possession then it is taxable; otherwise it is not. It seems to us that the important question for decision is the character of the instrument which the parties have executed. Is it entire or severable? This calls for a construction and interpretation of the “ lease and agreement ” in order to find the true intention of the parties as expressed therein. When this is ascertained we can then say whether the instrument is entire or severable, indivisible or divisible, and whether its different parts are independent or dependent. If all the provisions of the document are interdependent and give the whole agreement the character of oneness, in accord with the purpose and intention of the parties, no separation of its different parts into two contracts can be tolerated. No formula has been devised which furnishes a test for determining in all cases what contracts are severable and what are entire. The primary criterion for determining the question is the intention of the parties as determined by a fair construction of the terms and provisions of the contract itself, by the subject-matter to which it has reference, and by the circumstances of the particular transaction giving rise to the question. (12 Am. Jur., Contracts, § 315.) As a general rule, a contract is entire when, by its terms, nature and purpose, it contemplates that each and all of its parts are interdependent and common to one another and to the consideration, and is severable when in its nature and purpose it is susceptible of division and apportionment. (12 Am. Jur., Contracts, § 316.) As a general rule it may be said that a contract is entire when by its terms, nature and purpose it [471]*471contemplates and intends that each and all of its parts and the consideration shall be common each to the other and interdependent.
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Heffernan, J.
This is a certiorari proceeding to review a final determination of the State Tax Commission assessing a mortgage tax, payable upon the recordation of a certain written instrument.
Since the institution of this proceeding Charles B. Rogers, one of the petitioners, died, and his executors have been substituted in bis place.
The facts are not in dispute. Mr. Rogers and the late Mr. Justice DeAngelis were trustees under the will of Elizabeth B. Rogers, the former’s mother. Mr. Rogers was president of the First National Bank of Utica, which institution was later named First National Bank and Trust Company of Utica and is now known as First Citizens Bank and Trust Company of Utica. In 1922 the bank desired to change its location. Apparently it had several locations -under consideration. A site known as the Calder and Stewart properties was acceptable. In a proceeding for confirmation of the lease and agreement subsequently made the bank’s president testified that while the bank approved this site it “ considered the cost of the property too great for the erection thereon of such a building as it desired to put up if it was obliged to pay for the property immediately, but it was willing to lease the properties for a long term of years and erect its building thereon during the term providing it could purchase the land at the end of the term at its specified cost.” The owners of these properties were -unwilling to make such an arrangement. The trustees, however,'according to the testimony of Mr. Rogers, considering “ the situation as a favorable opportunity for seeming an exceptionally safe and profitable long term investment,” agreed with the bank that they would acquire the properties from the owners and lease them to the bank for ninety-nine years at an annual rental netting the trustees five per cent on the cost of the property, provided the bank would agree to erect a building of the value of at least $800,000, and would agree to purchase the land at its cost at the end of the term.
[469]*469The trustees, as such, acquired title to the Calder and Stewart properties at a cost of $800,000 and made, what Rogers described as, a “ lease and agreement for the sale of the leased premises ” with the bank. The consideration therefor, as expressed in the instrument, is “the rents, covenants and agreements hereinafter mentioned, reserved and contained.”
This instrument was executed on July 15, 1922, by the trustees and on behalf of the bank; pursuant thereto the properties were leased by the trustees to the bank for a term of ninety-nine years from July 15, 1922, at a yearly rent of five per cent upon the sum of $800,000, payable in quarterly installments. The bank agreed to construct a building on the land of the value of at least $800,000 and to pay all taxes, assessments, insurance, etc., and expressly stipulated the annual rental of $40,000 should be a net payment “ with no deduction for taxes now imposed or which may be imposed by future legislation, Federal, State or municipal, during the life of this lease.” Finally, the parties incorporated in the instrument a provision whereby the trustees bound themselves to sell, and the bank to buy, at the end of the term, all of the interest of the trustees in the premises for the sum of $800,000.
After the lease and agreement was confirmed the bank, evidently as part of its plan for the acquisition and development of the property, assigned it to the co-petitioner, First National Holding Corporation, which concern erected on the premises a fourteen-story building at a cost of at least $1,200,000, and sublet the first four floors of such building to the bank.
The instrument was recorded in the office of the clerk of the county of Oneida on September 5, 1922, without payment of a mortgage tax. The Tax Commission, after an examination of the mortgage tax records of Oneida county concluded, on April 26, 1937, that the instrument was taxable. Thereafter a hearing on the matter was duly held pursuant to notice and on July 7, 1937, the Commission made its final determination which is the subject of this review.
By such determination the Commission ruled that the instrument was subject to a mortgage tax as an executory contract of sale under which the vendee had or was entitled to possession pursuant to section 250 of the Tax Law; that the amount of tax due at the time of recordation was $4,000, which remained unpaid, and that, because of no bad faith or willful evasion of tax existed, penalties in excess of the statutory minimum should be remitted. The amount of tax and statutory penalties was paid under protest under date of July 30, 1937.
[470]*470The petitioners urge that the instrument in question is separable into two distinct contracts; one, a ninety-nine-year lease under which alone the bank is in possession, and the other an executory contract of sale with no provision for present possession.
A mortgage is defined as an instrument “ which imposes a lien on or affects the title to real property, notwithstanding that such property may form a part of the security for the debt or debts seemed thereby.” (Tax Law, § 250.) That section specifically provides that “ Executory contracts for the sale of real property under which the vendee has or is entitled to possession shall be deemed to be mortgages for the purposes of this article and shall be taxable at the amount unpaid on such contracts.”
The tax is imposed upon the mortgage, is computed upon the principal debt or obligation secured thereby (Tax Law, § 253), and is payable at the time of recordation of the instrument (Tax Law, § 257).
If the agreement in question is an executory contract for the sale of real property under which the vendee has or is entitled to possession then it is taxable; otherwise it is not. It seems to us that the important question for decision is the character of the instrument which the parties have executed. Is it entire or severable? This calls for a construction and interpretation of the “ lease and agreement ” in order to find the true intention of the parties as expressed therein. When this is ascertained we can then say whether the instrument is entire or severable, indivisible or divisible, and whether its different parts are independent or dependent. If all the provisions of the document are interdependent and give the whole agreement the character of oneness, in accord with the purpose and intention of the parties, no separation of its different parts into two contracts can be tolerated. No formula has been devised which furnishes a test for determining in all cases what contracts are severable and what are entire. The primary criterion for determining the question is the intention of the parties as determined by a fair construction of the terms and provisions of the contract itself, by the subject-matter to which it has reference, and by the circumstances of the particular transaction giving rise to the question. (12 Am. Jur., Contracts, § 315.) As a general rule, a contract is entire when, by its terms, nature and purpose, it contemplates that each and all of its parts are interdependent and common to one another and to the consideration, and is severable when in its nature and purpose it is susceptible of division and apportionment. (12 Am. Jur., Contracts, § 316.) As a general rule it may be said that a contract is entire when by its terms, nature and purpose it [471]*471contemplates and intends that each and all of its parts and the consideration shall be common each to the other and interdependent. On the other hand, it is the general rule that a severable contract is one which in its nature and purpose is susceptible of division and apportionment. (13 C. J. 561.) In Ming v. Corbin (142 N. Y. 334) it is said: “ A contract is entire when the parties intend that the promise by one party is conditional upon entire performance of his part of the contract by the other party. The contract is said to be severable when the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item or is left to be implied by law.” Where the entire fulfillment of the contract is contemplated by the parties as the basis of the arrangement, the contract is treated as indivisible. (Hyde v. Booraem, 16 Pet. 169.)
An option to purchase, being an integral part of a lease, is a substantial part of the whole contract, and is not obnoxious to the objection that there is a want of mutuality, and the agreement to pay rent or do other acts will support the option as well as the right to occupy under the lease, and bind the lessor notwithstanding the lessee is not bound to purchase. (35 C. J. 1038.)
A covenant in a lease that at the expiration of the term the lessor would pay for improvements, or that the lessee might purchase the premises at their appraised value, was held not divisible. (Ostrander v. Livingston, 3 Barb. Ch. 416.)
Disregarding the form of the agreement and looking solely to its substance the conclusion is inescapable that we have a single contract, with the provision for a lease and sale so intermingled and entwined as to be inseparable. The acquisition of title to the property by the bank is the essence of the contract. Its dominant thought was not the privilege of leasing the property but the right to own it. Its purpose was to acquire absolute ownership and control of the premises and not a mere permission to occupy it under a lease. There is nothing in the language of the statute which says that the vendee’s possession must be possession purely and exclusively as vendee. Evidently the term “ vendee ” is used by the Legislature in the statute merely as a medium of nomenclature usually designating the “ party of the second part ” under a contract of sale. As was said by Judge Pound in White v. Walsh (62 Misc. 423), the principal object of the contract is to bind both parties to an ultimate sale. That is the situation here. The bank wished to acquire the property and would have concluded no arrangement which did not guarantee to it the ownership. The only reason for the arrangement in question was the necessity [472]*472of deferring payment for the land so that the bank might meanwhile improve the property by the erection of a building, which was done at a cost of $1,200,000. The trustees acquired the property at a cost of $800,000. The bank bound itself to purchase the premises at that figure. The annual rental is computed at five per cent upon the cost of the property. The identical result could have been accomplished had the trustees deeded the premises to the bank and taken back a purchase-money mortgage for $800,000 with interest at five per cent payable ninety-nine years from date. It seems to us that the specified rental amounts are very definitely, in part at least, a consideration supporting the contract of sale. The bank having improved the real property worth $800,000 with a building costing $1,200,000 would certainly not have agreed to pay the same amount of rent if the agreement did not provide, as it did, that the bank could acquire the land so improved at the agreed price of the land alone.
It cannot be doubted that the agreement constitutes an absolute contract of purchase and sale. The bank is obligated to buy the premises at a stated price and the trustees are obligated to sell at that figure. The contract does not permit the construction that the bank could at will defeat the purchase agreement merely by a failure to pay rent, nor a construction that the agreement to buy is in the nature of a conditional option. No such intention is manifested by any language in the agreement and a rational interpretation does not permit the conclusion that the parties so intended.
By an indivisible, inseparable instrument, the trustees placed the bank in possession and, by the same instrument, the trustees bound themselves to sell and the bank bound itself to purchase, at a future date. Under such an instrument, clearly, summary proceedings would not suffice to revest all title in the trustees, in the event of a default on the part of the bank. Precisely when the lessor-lessee relationship arose and ended and when the vendorvendee relationship began does not seem to us to be particularly essential.
Petitioners urge that the case of Stewart v. Long Island R. R. Co. (102 N. Y. 601) is decisive of the question involved here. It is conceded that the question there decided is entirely different from the one presented here. It is true that there are some statements in the opinion which give color to petitioners’ contention. A judicial opinion is authority only for what is actually decided. (Rolfe v. Hewitt, 227 N. Y. 486.) What the court did, and not what it said in doing it, is the thing of importance. The language used in an opinion should always be read in the light of the issues pre[473]*473sented. The doctrine of stare decisis contemplates only such points as are actually involved and determined in a case and not what is said by the court on questions not necessarily involved therein.
We are clearly of the opinion that the contract before us is an indivisible one and properly taxable under the statute. The determination of respondents should be confirmed, with fifty dollars costs and disbursements.
Hill, P. J., Rhodes and Bliss, JJ., concur; Crapser, J., dissents, with an opinion.