Seward v. City of Rochester
| Decision Date | 10 April 1888 |
| Citation | 109 N.Y. 164,16 N.E. 348 |
| Parties | SEWARD v. CITY OF ROCHESTER. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from general term, supreme court, Fifth department.
Action for damages brought by Sutlief T. Seward against the city of Rochester. Judgment for plaintiff, and defendant appeals.
Ivan Powers, for appellant.
O. H. Stevens, for respondent.
The answer to a single question will determine this appeal. The action was brought to recover specific damages, and an arbitration agreement was pleaded in bar. The trial court and the general term pronounced that agreement no defense to the action, and, while there was much of controversy over the inquiry which of the parties had prevented the arbitration, the whole subject became immaterial upon the ruling finally adopted, and upon which the judgment stands. The plaintiff entered into a written agreement with the water commissioners of the defendant corporation. By the terms of that contract he granted to the city the right to lay iron pipes for the conveyance of water across his lands, and, when occasion should require, to alter, repair, replace, remove, or add to such pipes, subject to the payment of any damage done thereby. The city paid to the plaintiff $350 for the right thus granted, and further covenanted to pay to him ‘a fair and just compensation for any damage’ that might accrue ‘by the breaking, bursting, or leakage of said water-pipes, or any of them, or from any other cause.’ It was then agreed, so far as these possible and prospective damages were concerned, that, if the parties could not agree upon the amount, the damages should ‘be appraised and fixed by two disinterested persons,-one to be selected by each party,-and, in case they cannot agree, by an umpire to be selected by them; and the award of two of the three thus selected’ it was declared should be ‘final and conclusive.’
It seems to us quite clear that this agreement, properly construed, does not make the award of the arbitrators a condition precedent to the right of recovery. The grant itself was subject to any damage that might accrue, and, if it was suffered, the city covenanted to pay a just and fair compensation therefor. That covenant stands without limitation upon it. Not such sum as arbitrators might award, but a fair and just compensation for the injury sustained was what the city agreed to pay; and the stipulation for an appraisal became a collateral covenant fixing a mode of ascertaining the amount already agreed to be paid. The arbitration contract was executory, prospective, and general. It looked forward to the possibilities of the future, and to subjects of controversy not then in existence, not certain to arise, but contemplated as possible contingencies. It related to and...
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