Mayor v. Huntington

• Decision Date: 04 June 1889
• Parties: MAYOR, ETC., OF NEW YORK v. HUNTINGTON.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 631

21 N.E. 998

MAYOR, ETC., OF NEW YORK

v.HUNTINGTON.¹

Court of Appeals of New York,

Second Division.

June 4, 1889.

Appeal from the general term of the superior court of the city of New York, affirming a judgment in favor of the plaintiff, entered upon the decision of the court at a special term held for the trial of causes without a jury.

Francis Lynde Stetson, for appellant.

David J. Dean, for respondent.

PARKER, J.

This action was brought to recover $17,500, claimed to be due for one quarter's rent of certain premises belonging to the city, known as ‘Pier 37 North River.’ The trial court rendered judgment in favor of the plaintiff. An appeal to the general term resulted in an affirmance. The appellant contends that the transaction between the plaintiff's officers and the defendant, on the 27th day of April, 1883, in legal effect was a contract for the sale and purchase of a lease, which was to be executed before the inception of the term for which the premises were to be demised; that the delay in the execution was solely the fault of the plaintiff; and that by reason of the premises no right to rent as such would or could accrue to the plaintiff. The question presented, therefore, requires an examination of the transactions had between the parties for the purpose of ascertaining their legal effect. Prior to the 27th day of April, 1883, the department of docks advertised that on that date it would sell at public auction the right to collect and retain all wharfage of pier (new) No. 37 North river, for 10 years from May 1, 1883. It was further provided in such notice ‘that the lease for this pier will covenant for a renewal term of ten years, at an advanced annual rental, such increase to be five per cent. on the rental for the first term. The right to shed the said pier will be granted by the department, and the same will be appropriated for special kinds of commerce, as required by law.’ The notice of sale further provided that the purchaser would be required to agree that he would, upon being notified so to do, execute a lease, prepared upon the printed form adopted by the department, which can be seen upon application to the secretary, at the office, 119 Duane street; that the purchaser would be required to pay the rent quarterly in advance, in compliance with a stipulation therefor in the form of lease, adopted by the department; that two sureties, to be approved by the commissioners of docks, would be required upon the lease, to enter into a bond, jointly with the lessee, in a sum double the amount of the annual rent, conditioned for the faithful performance of all the covenants of the lease; and that at the time of sale the purchasers should pay to the department of docks 25 per cent, of the amount of annual rent bid, as security for the execution of the lease, such sum to be applied in payment of the first rent accruing, or to be forfeited if the purchaser should refuse to execute the lease and bond within five days after being notified that the lease and bond were ready for signature. At the sale the defendant became the purchaser at the rental of $70,000 per annum, and thereupon paid the plaintiff $17,500, as required by the terms of sale, and received a receipt therefor, which read as follows: ‘Received for the corporation of the city of New York by the department of docks, from C. P. Huntington, seventeen thousand and five hundred dollars, being twenty-five per cent. of the annual rent bid for the right to collect wharfage at pier (new) No. 37 North river, subject to all the terms and conditions stated in the published notice of sale held this day. New York, April 27th, 1883. JOHN R. VOORHIS, Treasurer pro tem.’ Simultaneously with the payment of the $17,500, and the delivery of the foregoing receipt, said defendant executed and delivered to the department of docks the following: ‘New York, April 27th, 1883. The undersigned having purchased at public sale held this day the right to collect wharfage at pier (new) No. 37 North river, for the annual rent of $70,000, during the period for which said right was then sold, subject to all the terms and conditions set forth in the printed notice for said sale, does hereby agree that the necessary lease of the said right of the above-named premises, the printed form for which has been duly examined, will be executed as soon as notice shall be given that it is prepared and ready for signature; and it is further understood and agreed that until the said lease shall be executed all the terms, conditions, and covenants contained therein shall be held to be as binding and of the same effect as though the lease was signed and executed. The following named persons are proposed for sureties for the faithful performance of the covenants of said lease, towit: * * * [Signed] C. P. HUNTINGTON, 23 Broad street. Witness: FRANCIS E. MOON.’

Now, what were the rights of the parties after this sale to the defendant as the highest bidder, and payment by him of the percentage required by the terms of sale? The defendant had agreed to pay $70,000 a year for 10 years, in quarterly payments in advance, on the day of the sale, and the 1st days of August, November, February, and May thereafter. The dock department had agreed to allow the defendant to collect wharfage at pier 37 North river for 10 years from May 1, 1883, and to enter upon the pier and occupy it for such purpose. The term for...