Rippey, J.
On November 1,1916, the surviving children, individually or as trustees under a deed of trust made by John G. Wendel (now deceased), were the owners of certain premises located on the southwest corner of Broadway and West Fifty-first street in the city of New York. The entire title ultimately vested on July 20, 1930, in Ella V. von E. Wendel. Miss Wendel died March 13, 1931, leaving a last will and testament by which she devised her residuary
estate (including the aforesaid property) to various charitable corporations. Upon Miss Wendel’s death temporary administrators of her estate were appointed, entered upon the discharge of their duties and continued to act as such until June 29, 1933, when executors were appointed and entered upon the discharge of their duties as such. The surviving of those executors delivered possession of the premises to the residuary beneficiaries named in the will on August 8, 1934, as of June 29, 1934, subject to the lease hereinafter referred to and the power of sale contained in the will, who retained possession and were entitled to all income from the premises, due and becoming due to December 1, 1936. In the meantime and on May 16, 1935, the plaintiff was incorporated by an act of the State Legislature (Laws of 1935, ch. 947) to manage and liquidate the residuary estate. Plaintiff took title by conveyance dated December 1, 1936, from the surviving executors and residuary beneficiaries under the will of Miss Wendel and held title and became entitled to the income from the property, then due and to become due, until August 10, 1937, when the property was conveyed to the Stonehurst Land
&
Development Company, Inc., with an assignment of the lease thereon and sums due and to become due thereunder as rent, excepting and reserving, however, all sums due from the tenant under the lease or in arrears other than the fixed annual net rent reserved. Both the residuary beneficiaries under the will of Miss Wendel and plaintiff were exempt from payment of all income, excise and license taxes or duties of every kind (Laws of 1935, ch. 947, §
7;
Tax Law [Cons. Laws, ch. 60], § 4, subd. 6;
People ex rel. Trustees Masonic Hall & Asylum Fund
v. Miller, 279 N. Y. 137; U. S. Code, tit. 26, § 103 [6, 14]).
On December 1, 1916, the owners of the premises above referred to leased the property to defendant by a written instrument, binding upon and enuring to the .benefit of the parties, their heirs, administrators, executors, successors and assigns, for a period of twenty-one years, in which a net annual rental (for the period involved in this suit) of
$51,000 was reserved and the defendant also agreed to pay to the landlords, in addition to the rent so reserved and as additional rent, such sums each year as they might legally be required to pay on account of taxes (including income taxes), repairs, insurance, etc., arising out of their ownership of the property and the income derived therefrom.
Plaintiff brought this action to recover a sum equal to the amount of annual income taxes, not heretofore advanced by defendant, which it and the representatives and residuary legatees of Miss Wendel would have been compelled to pay on the annual net rental of $51,000 had they been subject to the payment of such taxes on the theory that such sums were due and payable as rent additional to the specified net annual rent reserved notwithstanding that the hypothetical taxes which the sum sued for represents were never and never could be legally imposed, levied or assessed against the landlords or exacted from them by any governmental authority and that none such were ever paid. By its answer, defendant put in issue certain material allegations of the complaint, and, in addition, set up two separate defenses and counterclaimed for moneys which it had erroneously paid to the representatives of the estate of Miss Wendel and to the residuary charitable corporate legatees and returned by them to plaintiff. Plaintiff moved at Special Term to strike the separate defenses and counterclaim from the answer. Defendant made a cross-motion to dismiss the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. Defendant’s motion was granted, plaintiff’s motion was denied. Thereupon judgment was entered dismissing the complaint and severing the action to continue the counterclaim. On appeal, the Appellate Division unanimously affirmed. The case is here by permission of this court.
The parties agree that the rights of the parties turn upon the construction to be placed on paragraph third of the lease. That paragraph, so far as material, reads as follows:
“ Third.
That the Tenant, its successors and assigns shall pay to the Landlords, their heirs, successors or assigns
in each and every year during the said term as further rent, a sum or sums of money equal to all the income, excise and license taxes or duties of every kind, additional and super as well as normal, extraordinary as well as ordinary, unforeseen as well as foreséen, that shall be imposed, levied or assessed in any such year upon the rent reserved by this lease or the income secured hereby from the demised premises, by any present or future law of the United States of America, or of the State of New York, or of any other public or governmental body whatsoever, having authority to impose, levy or assess the same (as though the said rent reserved were the only income belonging to the Landlords, their heirs, successors and assigns who for the purposes of the computation of the amount of any such taxes or duties hereunder are to be considered as one person), without the benefit to the Tenant, its successors or assigns, of any deductions or exemptions to which the Landlords, their heirs, successors or assigns may be entitled, * * * and the said sum or sums of money shall be payable to the Landlords, their heirs, successors or assigns not later than five days after the first day the latter are required by law to pay the income, excise, license taxes or duties on the said rents or income for such year to the collector or receiving agent thereof; * * * but it is imderstood and agreed that in any event the full amount of the rent reserved hereby shall be paid to the Landlords, their heirs, successors or assigns over and above the sum or sums of money required to be paid by the Tenant, its successors and assigns as further rent as aforesaid.”
The wording of the clause seems fully and clearly to express the purpose and intention of the parties and their duties and obligations in clear and concise terms. Construction is solely for the court. The intention and purpose of the parties, if resort is needed to other portions of the lease, are clearly and certainly expressed. The intention must be found in the words used to express such intention
(Brainard
v.
N. Y. C. R. R. Co.,
242 N. Y. 125, 133). The only rent
“
reserved ” by the landlords for the period
in question was $51,000 per year. That reservation as well as the distinction between rent reserved and other contingent sums which the tenant must pay if obligation was imposed on the landlords to pay and arising out of the tenancy is repeatedly referred to and made clear in various clauses of the lease.
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Rippey, J.
On November 1,1916, the surviving children, individually or as trustees under a deed of trust made by John G. Wendel (now deceased), were the owners of certain premises located on the southwest corner of Broadway and West Fifty-first street in the city of New York. The entire title ultimately vested on July 20, 1930, in Ella V. von E. Wendel. Miss Wendel died March 13, 1931, leaving a last will and testament by which she devised her residuary
estate (including the aforesaid property) to various charitable corporations. Upon Miss Wendel’s death temporary administrators of her estate were appointed, entered upon the discharge of their duties and continued to act as such until June 29, 1933, when executors were appointed and entered upon the discharge of their duties as such. The surviving of those executors delivered possession of the premises to the residuary beneficiaries named in the will on August 8, 1934, as of June 29, 1934, subject to the lease hereinafter referred to and the power of sale contained in the will, who retained possession and were entitled to all income from the premises, due and becoming due to December 1, 1936. In the meantime and on May 16, 1935, the plaintiff was incorporated by an act of the State Legislature (Laws of 1935, ch. 947) to manage and liquidate the residuary estate. Plaintiff took title by conveyance dated December 1, 1936, from the surviving executors and residuary beneficiaries under the will of Miss Wendel and held title and became entitled to the income from the property, then due and to become due, until August 10, 1937, when the property was conveyed to the Stonehurst Land
&
Development Company, Inc., with an assignment of the lease thereon and sums due and to become due thereunder as rent, excepting and reserving, however, all sums due from the tenant under the lease or in arrears other than the fixed annual net rent reserved. Both the residuary beneficiaries under the will of Miss Wendel and plaintiff were exempt from payment of all income, excise and license taxes or duties of every kind (Laws of 1935, ch. 947, §
7;
Tax Law [Cons. Laws, ch. 60], § 4, subd. 6;
People ex rel. Trustees Masonic Hall & Asylum Fund
v. Miller, 279 N. Y. 137; U. S. Code, tit. 26, § 103 [6, 14]).
On December 1, 1916, the owners of the premises above referred to leased the property to defendant by a written instrument, binding upon and enuring to the .benefit of the parties, their heirs, administrators, executors, successors and assigns, for a period of twenty-one years, in which a net annual rental (for the period involved in this suit) of
$51,000 was reserved and the defendant also agreed to pay to the landlords, in addition to the rent so reserved and as additional rent, such sums each year as they might legally be required to pay on account of taxes (including income taxes), repairs, insurance, etc., arising out of their ownership of the property and the income derived therefrom.
Plaintiff brought this action to recover a sum equal to the amount of annual income taxes, not heretofore advanced by defendant, which it and the representatives and residuary legatees of Miss Wendel would have been compelled to pay on the annual net rental of $51,000 had they been subject to the payment of such taxes on the theory that such sums were due and payable as rent additional to the specified net annual rent reserved notwithstanding that the hypothetical taxes which the sum sued for represents were never and never could be legally imposed, levied or assessed against the landlords or exacted from them by any governmental authority and that none such were ever paid. By its answer, defendant put in issue certain material allegations of the complaint, and, in addition, set up two separate defenses and counterclaimed for moneys which it had erroneously paid to the representatives of the estate of Miss Wendel and to the residuary charitable corporate legatees and returned by them to plaintiff. Plaintiff moved at Special Term to strike the separate defenses and counterclaim from the answer. Defendant made a cross-motion to dismiss the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. Defendant’s motion was granted, plaintiff’s motion was denied. Thereupon judgment was entered dismissing the complaint and severing the action to continue the counterclaim. On appeal, the Appellate Division unanimously affirmed. The case is here by permission of this court.
The parties agree that the rights of the parties turn upon the construction to be placed on paragraph third of the lease. That paragraph, so far as material, reads as follows:
“ Third.
That the Tenant, its successors and assigns shall pay to the Landlords, their heirs, successors or assigns
in each and every year during the said term as further rent, a sum or sums of money equal to all the income, excise and license taxes or duties of every kind, additional and super as well as normal, extraordinary as well as ordinary, unforeseen as well as foreséen, that shall be imposed, levied or assessed in any such year upon the rent reserved by this lease or the income secured hereby from the demised premises, by any present or future law of the United States of America, or of the State of New York, or of any other public or governmental body whatsoever, having authority to impose, levy or assess the same (as though the said rent reserved were the only income belonging to the Landlords, their heirs, successors and assigns who for the purposes of the computation of the amount of any such taxes or duties hereunder are to be considered as one person), without the benefit to the Tenant, its successors or assigns, of any deductions or exemptions to which the Landlords, their heirs, successors or assigns may be entitled, * * * and the said sum or sums of money shall be payable to the Landlords, their heirs, successors or assigns not later than five days after the first day the latter are required by law to pay the income, excise, license taxes or duties on the said rents or income for such year to the collector or receiving agent thereof; * * * but it is imderstood and agreed that in any event the full amount of the rent reserved hereby shall be paid to the Landlords, their heirs, successors or assigns over and above the sum or sums of money required to be paid by the Tenant, its successors and assigns as further rent as aforesaid.”
The wording of the clause seems fully and clearly to express the purpose and intention of the parties and their duties and obligations in clear and concise terms. Construction is solely for the court. The intention and purpose of the parties, if resort is needed to other portions of the lease, are clearly and certainly expressed. The intention must be found in the words used to express such intention
(Brainard
v.
N. Y. C. R. R. Co.,
242 N. Y. 125, 133). The only rent
“
reserved ” by the landlords for the period
in question was $51,000 per year. That reservation as well as the distinction between rent reserved and other contingent sums which the tenant must pay if obligation was imposed on the landlords to pay and arising out of the tenancy is repeatedly referred to and made clear in various clauses of the lease. The purpose and intent are clearly expressed beyond successful contradiction to be that the landlords should receive a
net annual rental
of $51,000 under any and all contingencies, without any deduction for taxes, repairs, insurance, etc., and no more. Such an intention and purpose are expressed in the clause up for construction. In clause Two, relating to “ taxes, charges, assessments and payments * * * of every kind and nature whatsoever,” the parties say,
“
It being the intention of the parties hereto that the rent reserved hereby shall be received and enjoyed by the landlords, their heirs, successors and assigns
as a net sum
” so that they “ shall be enabled to apply the same to their own use
without any diminution thereof by payment of any duty or tax.”
(Italics ours.) In at least nine other clauses of the lease are similar provisions relating to improvements, damage actions and expenses, building construction, violation by the tenant of various covenants of the lease and of governmental regulations as to use, repairs, insurance and the like where agreement is made to indemnify the landlords for expenditures necessarily made or required to be made by them
as additional rent.
It is clear that clause Third provides for indemnity only to the landlords against liability for taxes imposed and
only in the event
of the levy, imposition and assessment of such taxes and the requirement that the landlords pay the same. There is no obligation on the tenant to pay as further rent a sum equal to taxes that might be imposed were the landlords not exempt from taxation. The obligation of the tenant was to pay if and when the landlords were required to pay and not otherwise.
It is argued that the expression that the additional rent is payable
“
without the benefit to the Tenant, its successors
or assigns of any deductions or exemptions to which the Landlords * * * may be entitled ” indicates a purpose to make the hypothetical taxes payable as additional rent regardless of any requirement on the part of the landlords to pay. It is safe to stand upon the wording of the written lease. If we take the words of the instrument to mean what they clearly say, it follows that the so-called exemption clause above quoted is consistent only with the requirement on the part of the landlords to pay taxes. It was immaterial who the landlords were, whether individuals or corporations, or what deductions or exemptions he or they might properly have in connection with income taxes to be paid. Unless such taxes were properly imposed and required to be paid, deductions and exemptions referred to are meaningless. But if and when income taxes were imposed, levied and assessed, then and then only did the parties remove from the realm of quibble and litigation the question of the amount to be paid as additional rent. As to that they said the additional rent to be paid is a sum equal to the amount of the tax imposed, levied and assessed without the benefit of any deductions or exemptions to which the landlords (taken as one) might be entitled. The above accords with the construction previously placed on the clause by the parties themselves.
Leases of the character of the one in question, where a fixed minimum rental is reserved and the tenant is required to pay as indemnity to the landlord, as additional rental, such sums as the landlord is required to pay as they arise out of and incidental to the ownership and leasing of the property, are not uncommon to men of business affairs. The parties to this lease were experienced in the practical business affairs of life. Any construction other than the one we have made would do violence to the language used and would be so refined and theoretical as to be unreal to men of business and practical affairs and lead to absurdity. We are not called upon to indulge in abstractions and unreality to remake the lease so as to impose obligations on the tenant that the parties never had in mind.
The mere fact, if it be a fact, that the tenant has heretofore on some occasions paid the tax as though actually imposed is of no force as affecting a practical construction that no obligation existed to pay the same
(Brainard
v.
N. Y. C. R. R. Co.,
242 N. Y. 125;
Hopwood Plays, Inc.,
v.
Kemper,
263 N. Y. 380).
The judgment should be affirmed, with costs.