City of New York v. Union News Co.

• Decision Date: 08 January 1918
• Citation: 222 N.Y. 263,118 N.E. 635
• Parties: CITY OF NEW YORK v. UNION NEWS CO.
• Court: New York Court of Appeals Court of Appeals

222 N.Y. 263

118 N.E. 635

CITY OF NEW YORK

v.UNION NEWS CO.

Court of Appeals of New York.

Jan. 8, 1918.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the City of New York against the Union News Company. From a judgment of the Appellate Division of the Supreme Court (154 N. Y. Supp. 638), affirming a judgment of the Trial Term for defendant, plaintiff appeals. Affirmed.

On April 26, 1912, the city of New York, through its commissioner of docks, granted to the defendant a permit or license to sell books, newspapers, and other articles therein described for the term of one year from 12 o'clock noon on May 1, 1912, at the municipal ferry terminal of the Staten Island ferry in the borough of Manhattan, at an annual rental of $23,000. Before the end of the year as therein provided negotiations were had relating to a renewal of the permit or license for the year commencing May 1, 1913, but a new agreement was not entered into because the parties failed to agree upon the rental to be paid therefor. The commissioner of docks advertised the permit or license to be let for two years to the highest bidder on April 29, 1913. At such sale the terms thereof were read at length. Among other things the terms of sale provided that the successful bidder would be required to (a) pay the auctioneer's fee of $50; (b) enter into a written agreement to comply with the terms of sale; (c) pay to the department of docks and ferries at the time of the sale 25 per cent. of the amount of the annual rental as security for carrying into effect the terms of sale. The commissioner of docks expressly reserved the right to--

‘reject any or all bids if in his judgment he deemed it for the best interests of the city of New York so to do. No person will be accepted as a successful bidder who is delinquent on any form of contract with the department of docks and ferries or with the city of New York. No bid will be received from any person who is in arrears to the department of docks and ferries or to the city of New York upon debt or contract or who is a defaulter of surety or otherwise upon any obligations to the department of docks and ferries or to the city of New York.’

The defendant was the highest bidder at such sale, having bid $15,500 per annum, and the permit or license was awarded and knocked down to it by the auctioneer. Immediately thereafter the defendant's representative paid to the auctioneer his fee of $50 and at the office of the cashier of the department paid $3,887.50, and received a receipt therefor in which it is stated:

‘For privileges at Manhattan terminal, S. I. ferry for three months due this day in the sum of $3,887.50 payable in advance in accordance with the terms of permit.’

On the following day the defendant was notified by the commissioner that he intended to reject the bid made by it, and on May 1st, before the expiration of the term under which the defendant was then occupying a portion of the dock property, it was served with a notice which stated among other things:

‘The bid submitted by you on April 29, 1913, of $15,500 for stand privileges at the Manhattan terminal of the Staten Island ferry is hereby rejected. Your present permit expires at 12 o'clock noon to-day. Permission is hereby granted you to remain over at the pleasure of the commissioner of docks at the same rate as you have heretofore been paying during the past year namely at the rate of $23,000 per annum. The cash, $3,887.50, deposited by you at the time of the offer is herewith returned. We will immediately notify the auctioneer to return the money paid by you to him, $50.’

The defendant immediately answered in writing in which among other things it stated:

‘Your favor of May 1st at hand in which you attempt to reject the contract entered into between Union News Company and the city of New York on April 29, 1913, for stand privileges at the Manhattan terminal of the Staten Island ferry at the rate of $15,500 per year for a term of two years. We beg to inform you that the Union News Company declines to remain over at the pleasure of the commissioner of docks at the same rate as we have heretofore been paying during the past year, namely, at the rate of $23,000 per annum. * * * We herewith tender back to you the sum of $3,887.50 left this morning at our office which we decline to accept, the same having been heretofore paid to you as stated in this letter, receipt for which, as outlined above, is now in our possession.’

The defendant has remained in possession of that part of the dock mentioned in the permit or license, and on the 1st of August and again on the 1st of November, 1913, tendered to the commissioner of docks $3,887.50, being the amount admitted by it to be due to the city for the permit or license for three months in advance. After November 1, 1913, this action was brought by the plaintiff to recover nine months' rent at the rate of $23,000 per annum, and it is alleged that the defendant is holding over as a tenant for the year beginning May 1, 1913. Further facts appear in the opinion. The Trial Term dismissed the plaintiff's complaint, and the judgment entered thereon has been affirmed by the Appellate Division.Lamar Hardy, Corp. Counsel, of New York City (E. Crosby Kindleberger, of New York City, of counsel), for appellant.

Frank M. Patterson, of New York City, for respondent.

CHASE, J. (after stating the facts as above).

Section 825 of the Greater New York Charter (Laws 1901, c. 466) authorizes the commissioner of docks of the city of New York in the name of and for the benefit of the corporation, to lease any or all of the wharf...