Dolman v. U.S. Trust Co. of N.Y.

• Decision Date: 24 February 1956
• Citation: Dolman v. U.S. Trust Co. of N.Y., 148 N.Y.S.2d 809, 1 A.D.2d 809 (N.Y. App. Div. 1956)
• Parties: Robert DOLMAN, Plaintiff-Respondent, v. UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee under the Last Will and Testament of Eugene Higgins, Deceased, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 809

148 N.Y.S.2d 809

1 A.D.2d 809

Robert DOLMAN, Plaintiff-Respondent, v.UNITED STATES TRUST COMPANY OF NEW YORK, as Trusteeunder the Last Will and Testament of Eugene HigginsDeceased, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 24, 1956.

William S. Gaud, Jr., New York City, of counsel(Carter, Ledyard & Milburn, New York City, attorneys), for appellant.

Milton M. Bergerman, New York City, of counsel(Joseph Calderon, New York City, with him on the brief; Bergerman & Hourwich, New York City, attorneys), for respondent.

Before PECK, P. J., and BASTOW, RABIN, COX and FRANK, JJ.

PER CURIAM.

Judgment affirmed with costs.Order filed.

COX and FRANK, JJ., dissent and vote to reverse and dismiss.

COX, Justice (dissenting).

Plaintiff instituted this action against defendantexecutor to recover damages for breach of a covenant of quiet enjoyment contained in a lease for a term of five years beginning May 1, 1952, which had been granted to plaintiff by defendant as executor of the estate of Eugene Higgins.Higgins died on July 28, 1948.Before his death he had owned parcels of land at and near 96th Street and Riverside Drive in the borough of Manhattan.Part of his holdings had been taken in condemnation by the City of New York as a site for the erection of a public school building, all of that particular parcel having been used for that purpose, so that none of it was available for the construction of a school yard or playground.There remained on that block, however, somewhat west of the school another parcel of unimproved land belonging to Higgins which he had previously leased to plaintiff for a two-year term ending May 1, 1949.After his death the present defendant, United States Trust Company of New York, was appointed executor of his estate and at the expiration of the lease plaintiff continued to occupy the leased premises as a statutory tenant.Incidentally, plaintiff had during his tenancy subleased the property to another party who used it as a commercial parking lot, although the lease prohibited reletting.

As early as September, 1949, defendant had probed the possibility of the acquisition by the Board of Education of this property for use in establishing a playground in connection with the school.Correspondence between defendant and the Board elicited the fact that subsequently the Board on November 10, 1949, approved a resolution requesting the Board of Estimate to acquire this and certain other property 'by the institution of condemnation proceedings or otherwise.'After this item appeared on the calendar of the Board of Estimate, further negotiations were conducted with the City authorities to the knowledge of plaintiff, but they were discontinued because an agreement as to price could not be concluded.Because of this apparent impasse, defendant, sometime thereafter, leased the property to plaintiff for a five-year term.The written lease therefor contained a covenant of quiet enjoyment, a covenant against subletting, a covenant against oral modification and a covenant against underletting or alteration without the landlord's prior consent in writing.It also contained a condemnation clause, Article Sixth, by the terms of which the landlord retained an option to cancel the lease in the event of condemnation, leaving the tenant without any right to share in the award in condemnation or any apportionment of it.

Subsequently, on January 20, 1953, the City reopened negotiations with defendant and offered to purchase the property at the latter's own price.However, upon learning of the outstanding lease to plaintiff, it objected and then decided on condemnation of the property provided defendant would give the City an option to purchase defendant's interest in any condemnation award which it might receive.These negotiations were instituted by the City and it is undisputed that the suggestion as to the manner of accomplishing the condemnation emanated from the City.Defendant was totally unfamiliar with this procedure but agreed to its adoption, executed the desired option, and the property was condemned.Defendant then, under the terms of the condemnation clause in its lease to plaintiff, exercised its own optional right to terminate the lease and so notified the tenant.

It is true that the covenant of quiet enjoyment imposes upon the landlord a severe obligation, Ganz v. Clark, 252 N.Y. 92, 169 N.E. 100;Fifth Avenue Building Co v. Kernochan, 221 N.Y. 370, 117 N.E. 579;Williams v. Getman, 114 App.Div. 282, 99 N.Y.S. 977;Al's 334 9th Ave. Corp. v. Herbener, 275 App.Div. 904, 89 N.Y.S.2d 667;Lindwall v. May, 111 App.Div. 457, 97 N.Y.S. 821.However, the above cases relied upon by plaintiff are distinguishable from the case at bar.Principally, plaintiff relies on the decision of Special Term in this case on a motion made by defendant to dismiss the complaint for insufficiency, 206 Misc. 929, 134 N.Y.S.2d 508.

The essential factor in this case is the intention of the parties.Such intention must be ascertained from an examination of the entire lease and not from any particular clause.Bovin v. Galitzka, 250 N.Y. 228, 232, 165 N.E. 273, 275.In the contract of lease herein, express words are used to manifest a limitation or condition, the object intended being a termination of the lease at the option of the lessor if the City effected a condemnation.

It seems clear from the testimony that plaintiff was aware of the City's interest in the property.Defendant's witness, Haley, testified without contradiction that over a period of several years he had discussed with plaintiff the City's interest.It must...