Buffalo & L. Land Co. v. Bellevue Land & Improvement Co.

• Decision Date: 08 January 1901
• Citation: 165 N.Y. 247,59 N.E. 5
• Court: New York Court of Appeals Court of Appeals
• Parties: BUFFALO & L. LAND CO. v. BELLEVUE LAND & IMPROVEMENT CO.

165 N.Y. 247

59 N.E. 5

BUFFALO & L. LAND CO.

v.BELLEVUE LAND & IMPROVEMENT CO.

Court of Appeals of New York.

Jan. 8, 1901.

Appeal from supreme court, appellate division, Fourth department.

Action by the Buffalo & Lancaster Land Company against the Bellevue Land & Improvement Company. From a decision of the appellate division (53 N. Y. Supp. 17) reversing a decree in favor of the plaintiff (47 N. Y. Supp. 721), plaintiff appeals. Affirmed.

Simon Fleischmann, for appellant.

John G. Milburn, for respondent.

O'BRIEN, J.

This is an action to rescind a contract for a breach by the defendant, and to compel the latter to specifically perform certain alternative provisions thereof. The contract in terms, as is claimed, bound the defendant to do various things that it failed to do: (1) To build, maintain, and operate an electric street railroad through certain lands, which it conveyed to the plaintiff's grantors; (2) failing in that, to accept a reconveyance of the lands, and to cancel a purchase-money mortgage given by such grantors; (3) to refund to the plaintiff any sums of money paid on the mortgage or on the purchase price of the land; (3) to pay $5,000 liquidated damages for the violation of the agreement.

On the 1st day of June, 1892, the defendant agreed to sell and convey to several individuals named a tract of land containing about 118 acres, for the sum of $71,136, to be paid at times therein expressed, in cash to the amount of about $18,000, when the defendant was to convey to the purchasers the land by a warranty deed, and the purchasers were to secure the balance of the purchase money by bond and mortgage. The cash payments were made, the property conveyed by the defendant, and the purchase-money mortgage delivered by the purchasers in accordance with the agreement. The defendant also agreed that an electric street railroad should be constructed, maintained, and operated through the land from the railroad system in Buffalo to the village of Lancaster, the construction of the same to be commenced on or before July 1, 1892, and the road to be completed and in operation on or before May 1, 1893, and that such railroad should be maintained in good condition and operated until the land should be sold. In February, 1893, the individual purchasers of the land under this contract became incorporated, and the corporation thus formed is the plaintiff in this action. These individuals were about to convey the lands to the plaintiff, but, as it was supposed that the defendant's covenant with respect to the street railroad was good only until the lands were sold, the two corporations, on March 1, 1893, entered into another agreement in writing, in which the defendant it described as the party of the first part, and the plaintiff as the party of the second part, the material parts of which are as follows: ‘That in consideration of the premises and the sum of one dollar paid by the party of the second part to the party of the first part, and for other good and valuable considerations, the party of the first part agrees, in case the parties to said agreement of the second part shall make the conveyance hereinbefore recited, that an electric street railroad shall be constructed, maintained, and operated connected with the street railroad system of the city of Buffalo, and running thence to the village of Lancaster, and that said railroad shall run over said land, and in and along a certain street or highway one hundred feet wide as the same is now located, which street or highway runs in a direction parallel or nearly parallel to the northerly line of said land; that said street railway shall be completed and in operation on or before the 1st day of May, [165 N.Y. 251]1893; that said railway shall be maintained in good condition and in operation until the said land shall be sold by the party of the second part; and that after the completion of said railroad cars shall be run thereon for the convenience of passengers as often as once every half hour from 7 a. m. to 8 p. m. each day, as such street railroads are usually run, until said land is sold. The party of the first part further covenants that, in case said street railway shall not be constructed, maintained, and operated as hereinbefore provided, the said party of the first part will, at the request of the party of the second part, take back the said land, provided said land shall be free and clear from all liens and incumbrances, except a mortgage made by the parties to said agreement of the second part, to the party of the first part, to secure the payment of the sum of fifty-five thousand five hundred and eighty ($55,580) dollars, which mortgage bears even date herewith, and except also taxes and assessments levied or assessed thereon since the 1st day of June, 1892, and except, also, any incumbrances upon said land or any defects in the title thereto of the party of the second part which existed at the time of the delivery of the deed to the parties to said agreement of the second part; and thereupon the party of the first part will repay to the party of the second part all money which has or may be paid to the party of the first part pursuant to the terms of said agreement, and all moneys which may have been paid on said mortgage or the bond to secure which the same is given, and all moneys which may have been paid on account of taxes and assessments levied or assessed upon said premises since the 1st day of June, 1892, and will pay to the party of the second part the further sum of five thousand ($5,000) dollars, which it is hereby agreed shall be full liquidated damages for the breach of the foregoing covenant for the construction, maintenance, and operation of said street railway; and the party of the first part will thereupon, at the request of the party of the second part, discharge said mortgage.’ The court found, and it is undisputed, that the defendant built the railroad and put it in operation, and that it was operated down to the time of the trial, except during the winter of $1894-95, as to which period a special finding was made in the following words: ‘That during the whole or a substantial part of the period elapsing from December 1, 1894, to April 1, 1895, cars were not run on the said electric street railway as often as once every half hour from 7 a. m. to 8 p. m. of each day, and that during said period there was a substantial failure to run cars on said electric street railway on the days and at the times and intervals required by said contract set...