Janos v. Peck

• Decision Date: 09 July 1964
• Parties: Emanuel JANOS, Seymour Janos and Minnie Janos, Plaintiffs-Appellants-Respondents, v. Hildreth G. PECK, Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 254

251 N.Y.S.2d 254

21 A.D.2d 529

Emanuel JANOS, Seymour Janos and Minnie Janos, Plaintiffs-Appellants-Respondents, v. Hildreth G. PECK, Defendant-Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

July 9, 1964.

Isadore B. Hurwitz, New York City, for appellants Janos.

Harry H. Harris, New York City, of counsel (Harris & Post, New York City, attorneys), for appellant Peck.

Before RABIN, J. P., and McNALLY, STEVENS, EAGER and STALEY, JJ.

EAGER, Justice.

This appeal is from an order denying plaintiffs' motion and defendant's cross application for summary judgment in a declaratory judgment action.

The parties are co-tenants, each owning a one-fifth undivided interest, in a family owned commercial building. On April 27, 1954, following the defendant's procurement of a judgment establishing her ownership of an undivided one-fifth interest in the premises, all of the co-tenants entered into a contract settling the claim for services and the accounts of Emanuel and Seymour Janos (two of the co-tenants and two of the plaintiffs here) in the management of the building for a period from December 1, 1949 to September 30, 1953, providing for continuance of their management of the building for a period of ten years and for the payment of $500 monthly by them to the defendant and to another co-tenant, Dorothy Lester, in full payment of their respective shares of the rents, issues and profits of the premises. The said Emanuel and Seymour Janos are brothers and Emanuel is an attorney. Incidental to the aforesaid contract and on the same date, the defendant and the other co-tenants entered into a supplemental agreement appointing said plaintiffs exclusive managing agents and detailing their authority and powers in the matter of the management of the premises; and, in the course of such management, they used and wrote under the name of Janos & Janos.

On May 8, 1963, Janos & Janos wrote to defendant proposing a refinancing with the East River Savings Bank of a first mortgage loan against the premises, and the defendant, in response to the letter, signed and returned an enclosed written authorization for the closing of the new mortgage loan. The complaint demands judgment declaring that the 'instrument [the letter] dated May 8, 1963 is a valid and binding contract; that by virtue thereof the defendant is obligated * * * to close the mortgage pursuant to the commitment obtained from the East River Savings Bank and that the agreements with respect to the management of the premises [by Janos & Janos] and distribution of the rents and profits of the premises, both dated April 27, 1954, are extended for an additional period to coincide with the terms of the East River Savings Bank mortgage commitment', viz. for a period of ten years to December 1, 1974.

Subsequent to the commencement of the action, the defendant, without prejudice, executed the necessary papers to carry out the mortgage commitment and that transaction has been closed. There remains, however, the question of whether or not the parties have entered into a binding contract to extend the April 27, 1954 contract and the management agreement for the ten year period. Upon the argument, counsel representing all parties requested a determination by the court of whether or not such a contract was effected by the Janos & Janos letter of May 8, 1963 and the defendant's written authorization in response thereto. Since the controlling facts are not in dispute, we should dispose of this issue here and now.

Broad and liberal use of the partial summary judgment procedure is in furtherance of the general objectives of CPLR (see CPLR § 140). The determination by the court on a summary judgment motion of pivotal and controlling issues of law not tied in with disputed facts will 'aid in the disposition of the action' (see CPLR Rule 3212(g)). So utilized, the partial summary judgment procedure affords the opportunity of promptly settling issues which can be disposed of as a matter of law, and furthermore, furnishes a means for the withdrawing from the case of sham and feigned issues of fact and of law which might have a tendency to confuse and complicate the trial. Thereby, some constructive results may be salvaged from the judicial efforts expended on a motion for summary judgment. (See Luria Steel & Trading Corporation v. Ford, D.C., 9 F.R.D. 479, 481; Yale Transport Corp. v. Yellow Truck & Coach Mfg. Co., D.C., 3 F.R.D. 440, 441.)

Upon such a motion in a declaratory judgment action, the partial summary judgment procedure should be fully utilized for the purpose of declaring and settling the rights and obligations of the parties, insofar as they are not dependent upon the resolution of matters of fact in bona fide dispute, with a remission for trial only of those issues of law and fact which may not be determined on the basis of undisputed facts. (See CPLR Rule 3212(e)(g).) Where, among the issues presented on such a motion, there is a question as to the construction of a written contract between the parties and the determination of that question may be reached by reference to and a consideration of the plain and unambiguous wording of the contract, the question, as one of law, should be then and there resolved. (See Stone v. Goodson, 8 N.Y.2d 8, 13, 200 N.Y.S.2d 627, 629, 167 N.E.2d 328; Tufano Contracting Corp. v. Port of New York Authority, 18 A.D.2d 1001, 238 N.Y.S.2d 607; Bonime v. Cummings, 5 A.D.2d 976, 172 N.Y.S.2d 594.) This will generally result in simplifying the issues for the trial and will 'aid in the disposition of the action'.

The Janos & Janos letter of May 8, 1963, addressed to defendant, purporting to set forth the desirability of refinancing the first mortgage loan against the premises, with the statement of the terms of the proposed new first mortgage to the East River Savings Bank to run for a period of ten years, contained paragraphs stating that:

'At the present time we are paying approximately $29,000.00 annually to the bank for interest and principal. Under the terms of the new mortgage we will have to pay approximately $45,000.00 annually for interest and amortization. The increased sum of $16,000.00 will be off-set by a reduction in wages through the conversion of the elevators and you will continue to receive your monthly payments of $500.00 under the same arrangements as in the past for the entire term of the new first mortgage.

'It is our firm opinion that this new first mortgage will be a very good deal for all of us and therefore we request your written consent without undue delay to close this transaction.' [Italics added.]

Defendant, in response to the letter, signed and returned a writing prepared by and addressed to Janos & Janos, reading as follows:

'You are authorized to close a new mortgage loan covering premises 270 West 39th Street, New York City as outlined in your letter addressed to me dated May 8, 1963.'

Neither the May 8 letter nor the writing signed by the defendant specifically mentioned any extension of the April 27, 1954 contract and management agreement. The plaintiffs Janos & Janos did not by the letter purport to offer and bind themselves to any such extension. Furthermore, the writing signed by the defendant, in the words which were selected by the plaintiff attorneys, was expressly limited to an authorization by defendant to the plaintiffs 'to close a new mortgage loan * * * as outlined in your letter.' The wording is plain and unambiguous and therefore a reference to extraneous facts is unnecessary to a determination as to the construction and effect thereof. 'It has long been the rule that when a contract is clear in and of itself, circumstances, extrinsic to the document may not be considered, General Phoenix Corp. v. Cabot, 300 N.Y. 87, 89 N.E.2d 238, and that where the intention of the parties may be gathered from the four corners of the instrument, interpretation of the contract is a question of law and no trial is necessary to determine the legal effect of the contract, Brainard v. New York Central R. Co., 242 N.Y. 125, 151 N.E. 152, 45 A.L.R. 751; Matter of Western Union Telegraph Co. [American Communications Ass'n], 299 N.Y. 177, 86 N.E.2d 162.' (Bethlehem Steel Co. v. Turner Constr. Co., 2 N.Y.2d 456, 460, 161 N.Y.S.2d 90, 93, 141 N.E.2d 590, 593, 63 A.L.R.2d 1331.) Under the circumstances, the only purpose served by receiving parol evidence as to the intent of the parties would be to expand the agreement of the defendant rather than to explain or interpret it. The language of the contract must control, 'and neither the court nor the jury has the right to construct, by implication or otherwise, a new contract in place of that deliberately made by the parties.' (N.Y. Law of Contracts [vol. 2], § 798.)

Furthermore, the plaintiffs would not be helped by a claim of ambiguity with respect to whether or not the Janos & Janos letter and defendant's responsive writing intended an extension of the April 27, 1954 contract and management agreement. The letter and the writing signed by defendant were both drafted by plaintiffs Janos & Janos. Being in the words and language selected by them, these writings are to be strictly construed as against them. (See N.Y. Law of Contracts [vol. 2], § 818.) 'Since one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity of language are resolved in favor of the latter.' (4 Williston on Contracts [3rd ed.], § 621, pp. 760, 761.) Here, it stands undisputed that these plaintiffs, one of whom was an attorney, are responsible for an uncertainty, if any, in the wording used, and there is no suggestion of any extrinsic proofs which would justify a broadening of the wording to support a contract as claimed by them.

In light of the foregoing, it is concluded that the April 27, 1954 contract was not extended by virtue of a contract arising out...