Beuren v. Wotherspoon

• Decision Date: 12 June 1900
• Citation: 57 N.E. 633,164 N.Y. 368
• Parties: VAN BEUREN et al. v. WOTHERSPOON et al.
• Court: New York Court of Appeals Court of Appeals

164 N.Y. 368

57 N.E. 633

VAN BEUREN et al.

v.WOTHERSPOON et al.

Court of Appeals of New York.

June 12, 1900.

Appeal from supreme court, appellate division, First department.

Action by Elizabeth S. Van Beuren and others against Frances A. Wotherspoon and others to compel a valuation of improvements on leased land. From a judgment of the appellate division (50 N. Y. Supp. 1134) reversing a judgment of the special term in favor of defendants, they appeal. Modified.

On the 2d day of March, 1874, Mary S. Van Beuren and Caroline Hoppock, devisee under the will of Samuel Cary, entered into a written lease under their hands and seals, whereby the former, in consideration of the annual rent of $1,000, to be paid by the latter, leased to her premises situated on Fourteenth street, in the city of New York, for the period of 21 years. The lease contained a covenant that at the expiration of that term the lessor should have a choice either to grant a renewal of such lease for the further term of 21 years at such rent as should be agreed upon or be established by appraisers in the manner stated therein, or to pay to the lessee the value of the front building on the premises, to be ascertained by three disinterested persons. It was further agreed that whenever the lessor refused to grant a renewal the building or its substitute should be valued in the manner stated, but that the lessee should not be compelled to surrender the premises until the payment for the building had been made or tendered, if the valuation was before the expiration of the term, or was prevented by the fault of the lessor; that if the lessor should, at the expiration of any term granted, elect and choose to pay the value of the building, and actually make or tender such payment, or if the valuation should not be made before the expiration of the term in consequence of any act of the lessee, then the lessee should deliver up the possession of the building, and the lessor should pay the lessee the value of it when such valuation was made, or grant a new lease. The lessor was not required to make her election in any case until both valuations had been made, unless prevented by the fault of the lessor. The lessee died in November, 1890, and her interest vested in the defendants. In August, 1894, the lessor died, and the plaintiffs succeeded to her title to the premises in question. By the terms of the lease, it expired on the 1st of March, 1895. For some time prior thereto the defendants made continued efforts to ascertain from the plaintiffs whether they would renew the lease, or whether they would acquire title to the building thereon under the provisions of the existing lease, and sought to have them agree upon the respective valuations. But the plaintiffs refused to make any election, and made none until after the final judgment in this case; nor did they even indicate what they wished or proposed to do. They would neither decide whether they would renew the lease, nor state the amount of rent at which they would renew, nor agree upon any value for the building. From early in December, 1894, until the middle of February, 1895, the defendants persistently sought to obtain either a lease of the premises or a valuation of the building thereon by agreement, and the plaintiffs as persistently refused to make any statement upon the subject, but evaded all efforts upon the part of the defendants to reach an agreement, or to obtain from the plaintiffs an offer in relation to the rent or an offer for the building. After these efforts had been made, and about six days before the expiration of the term for which the lease was given, the defendants, to procure a determination of the matter, notified the plaintiffs that they had chosen an arbitrator, and requested them immediately to appoint one, so that the values might be determined before the expiration of the term. On the 25th of that month the plaintiffs also named an arbitrator. Upon the hearing before the arbitrators the defendants endeavored to have the plaintiffs agree to the selection of a third arbirator or umpire, so that the matter might be more speedily determined. That the plaintiffs were unwilling to do, but insisted upon a technical compliance with the lease. The defendants endeavored also to make some agreement with them as to the valuation of the lot and building independently of the arbitration, but the plaintiffs preferred to follow the formal proceedings provided by the lease.

Testimony was taken before the arbitrators at some length, and it was not concluded until the latter part of July, 1895, when each arbitrator made a separate and different award, and hence there was no agreement upon the questions submitted. Then followed an extended correspondence between the parties in regard to the selection of an umpire. There appears to have been a variety of causes which seemed to prevent the selection of an umpire, and thus matters remained until about the middle of January, 1896, when this action was commenced. Its purpose was to obtain a judgment fixing the valuation of the lot and building either by a decision of the court or by the appointment of proper persons to appraise their value. The complaint alleged the making of the lease, the ownership of the premises, and the rights of the defendants, and the action of the plaintiffs to procure a valuation under the lease. The answer denied the allegations of the complaint so far as it was alleged that the defendants were in default in not procuring or aiding to procure a determination of such valuation, set up the neglect and refusal of the plaintiffs to place any valuation upon the lot or building, insisted upon their right to have the valuation made as prescribed in the lease and not by the court, and demanded judgment for a dismissal of the complaint. The action was tried at a special term, which, after taking the proofs of the parties, dismissed the complaint upon the merits, upon the ground that the plaintiffs had not shown or established any such diligence upon their part to procure the valuation of the lot and building in the manner provided by the lease as entitled them to maintain the action. Upon the decision of the trial court, and on June 27, 1896, judgment was entered in favor of the defendants dismissing the complaint upon the merits. Upon the 7th of the following July the plaintiffs excepted to the decision of the trial court, and on the same day appealed from that judgment to the appellate division in the First department. The latter court reversed the judgment of the special term without awarding a new trial, and directed a judgment as follows: ‘That the judgment so appealed from be, and the same hereby is, reversed, with costs and disbursements of this appeal, and it is hereby adjudged that John Lindley, counselor at law, of the city of New York, be appointed as referee to appraise and value separately the lot of land and the building described in the complaint as of March 1, 1895, and to take proof of the value of the use and occupation of said premises from March 1, 1895, the expiration of said term, to the time of making his said report, with interest thereon, and of all the arrears of rent, taxes, and assessments, if any, with interest, which were due prior to March 1, 1895, and also to take proof of all taxes which have become due since March 1, 1895, and which also shall have been paid by the defendants or either of them; that the said referee shall report to the special term of the supreme court with all convenient speed, and, upon the coming in of said report, and its confirmation according to the rules and practice, the said special term shall enter a final judgment herein. It is further adjudged that, within 20 days after the entry of said final judgment, the plaintiffs shall have the right to elect either to grant a renewal of the lease referred to in said complaint, which expired on the 1st day of March, 1895, for the further term of 21 years thence next ensuing at the annual rent of 5 per cent. of the amount of the appraisal or valuation of said lot of land to be made as aforesaid, for such further term, and in other respects on the terms and conditions contained in said expired lease; or to pay to the said defendants, as their interest may appear, or to their executors, administrators, or assigns, the value of the building on the said lot of land referred to in the complaint, to be ascertained as hereinbefore provided. Said election to be made after both of said valuations shall have been made. And that, in case the plaintiffs, after such valuations shall have been so made, shall elect to make a renewal of said lease, they shall tender to the defendants a new lease as of March 1, 1895, at a rental to be ascertained as aforesaid, and in other respects upon the terms provided in said expired lease. And that in case the plaintiffs, after such valuations shall have been so made, shall elect to pay the value of said building, the defendants forthwith shall deliver up the possession of the said premises on the payment, or tender by the plaintiffs, of such valuation of said building so fixed, with interest from March 1, 1895, together with such taxes as have fallen due since March 1, 1895, and which also shall have been paid by the defendants, or either of them, and interest thereon from the day on which the same shall have been paid, after deducting from the said valuation of the...