Burns v. City of New York

• Decision Date: 12 January 1915
• Citation: 213 N.Y. 516,108 N.E. 77
• Parties: BURNS v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 516

108 N.E. 77

BURNS

v.CITY OF NEW YORK.

Court of Appeals of New York.

Jan. 12, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Submission of controversy on agreed statement of facts, pursuant to Code Civ. Proc. § 1279, between John N. Burns, administrator de bonis non of Rebecca C. Wayne, deceased, as plaintiff, and the City of New York as defendant. From a judgment of the Appellate Civision (158 App. Div. 729,143 N. Y. Supp. 952) for defendant, plaintiff appeals. Reversed and directed.James A. Donnelly, of New York City, for appellant.

Frank L. Polk, Corp. Counsel, of New York City (Charles J. Nehrbas, of New York City, of counsel), for respondent.

CHASE, J.

The mayor, aldermen, and commonalty of the city of New York, in 1811, leased to John Dixey a small piece of real property in the city of New York now known as No. 103 Park Row. The lease was for the term of 21 years, beginning May 1, 1806. It contained a covenant by the lessor that:

‘They, the said mayor, aldermen and commonalty of the city of New York, their successors and assigns shall and will, at the expiration of the term hereby demised, again demise and to farm let the above premises in pursuance of this present lease unto the said John Dixey, his executors, administrators or assigns for and during the term of twenty-one years thereafter, with a like covenant for future renewals of the lease as is contained in this present indenture, and upon such rents and other terms and conditions as shall be agreed upon between the parties, or as shall be determined by two sworn appraisers, one of whom to be chosen by each of the said parties; unless the said premises or some part thereof shall at the expiration of the said term hereby demised be required for public purposes; in which case the said term shall not be renewed, but the said mayor, aldermen and commonalty of the city of New York, their successors and assigns shall and will pay to the said John Dixey, his executors, administrators or assigns, the value of such buildings as shall be erected in pursuance of this lease. * * *’

On May 1, 1827, May 1, 1848, May 1, 1869, and May 1, 1890, and on each of said dates, said lease was renewed for a further term of 21 years to the successor in interest of said Dixey. Each of said renewals contained a provision similar to the provision quoted from the first lease providing for future renewals. Prior to May 1, 1911, the expiration of the lease dated May 1, 1890, the successor in interest of said Dixey duly applied for a renewal of said lease for a further period of 21 years, which application was refused. The plaintiff's testatrix and her predecessors in title fully performed all the conditions and covenants required of the lessee by the terms of said leases. The premises are not required for public purposes. The respondent claims that, if the original lease did not provide for perpetual renewals, the leases executed on and subsequent to May 1, 1869, were made without authority of law and are void, because of the ordinances passed by the common council of the city of New York in 1844 and subsequent acts of the Legislature. Ordinances of the City of New York, §§ 9 and 10, tit. 4, as ratified and confirmed by chapter 225, Laws of 1845; chapter 217, Laws of 1853, § 7; chapter 446, Laws of 1857, § 41; chapter 876, Laws of 1869, § 8; chapter 410, Laws of 1882, § 170; present Charter of the City of New York, § 205.

[1][2][3] But one question of law is presented on this appeal, and that is involved in the construction of that part of the lease quoted relating to the renewals thereof. Was it the intention of the parties to the lease to provide for perpetual renewals?

Covenants by a landlord for continual renewals are not favored for they tend to create a perpetuity. When they are explicit the more established weight of authority is in favor of their validity. Kent's Comm. vol. 4, 109. The rule stated by Kent was the law in England and has been frequently stated by writers and in opinions by the courts both in England and in this country. Platt on Leases, 709; Taylor's Landlord and Tenant, § 335; 3 Washburn's Real Property, 469; McAdam on Landlord and Tenant, § 123; Jones on Landlord and Tenant, § 343; Tritton v. Foote, 2 Brown's Ch. R. 636, 639, and note; Hare v. Burgess, 4 K. & J. 41; Rutgers v. Hunter, 6 Johns. Ch. 215;Carr v. Ellison, 20 Wend. 178;Hoff v. Royal Metal Furniture Co., 117 App. Div. 884,103 N. Y. Supp. 371, affirmed 189 N. Y. 555, 82 N. E. 1128;Drake v. Board of Education, 208 Mo. 540, 106 S. W. 650,14 L. R . A. (N. S.) 829, 123 Am. St. Rep. 448,13 Ann. Cas. 1002.

Reading the provisions of the leases in question in the light of the settled law upon the subject of the construction of covenants for renewal, it is difficult to avoid the conclusion that the parties to the original lease in preparing the same had the established rule of law in mind and intended to bind the city to grant future renewals in perpetuity. Such intention is not left to conjecture or to be implied. It is clearly and specifically provided by the lease that it shall run for a term of 30 years, and that at the expiration of the term it will be renewed ‘with a like covenant for future renewals of the lease as is contained in this present indenture.’ As the language in regard to future renewals is clear, it should be enforced.

The respondent relies upon the case of Syms v. Mayor, etc., of N. Y., 105 N. Y. 153, 11 N. E. 369. The plaintiff in the Syms Case brought the action to reform two leases. The city of New York had executed a lease for the term of 30 years which ended on the 1st day of May, 1840. In it the city agreed that at the expiration of the term it would give a new lease ‘for and during the term of twenty-one years thereafter, with a like covenant for future renewals of the lease as is contained in this present indenture.’ A new lease was given at the end of the first term for a term of 21 years, and it was therein covenanted that at the end of such renewed term another lease would be given ‘in pursuance of this present lease * * * for and during the term of twenty-one years thereafter, upon such rents as shall be agreed upon.’ At the end of the second lease a third lease was given to an assignee of the first lessee, and in such third lease there was no covenant for a renewal; but the lessee expressly covenanted that at the end of the term he would peaceably and quietly leave, surrender, and yield up to the city or its successors or assigns all the demised premises. Near the end of the term of the last lease, the city sold the property to a stranger to the lease. Thereafter the successor of the lessee brought the action to reform the leases given in renewal of the original lease so as to insert in each a covenant for a further renewal of 21 years from the date of the expiration of such renewals. newals. The court in the opinion say (105 N. Y. 158, 11 N. E. 371):

‘This action was brought mainly for the purpose of reforming the last two leases. But there was no proof of any mistake or fraud in their execution, or in the terms inserted in them, and therefore, even if the statute of...