Mayer v. McCreery

• Decision Date: 25 February 1890
• Citation: 119 N.Y. 434,23 N.E. 1045
• Parties: MAYER v. McCREERY.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 434

23 N.E. 1045

MAYER

v.McCREERY.¹

Court of Appeals of New York.

Feb. 25, 1890.

Appeal from general term, supreme court, first department.

Action by Max Mayer against James McCreery for specific performance of agreement to give a lease. The court, at special term, gave judgment for the plaintiff, and defendant appealed to the general term, which reversed the judgment and granted a new trial, from which decision the plaintiff now brings this appeal.

Fredk. R. Coudert, for appellant.

W. F. Dunning, for respondent.

PECKHAM, J.

This is an appeal from an order of the general term of the supreme court reversing a judgment for the plaintiff, and granting a new trial. The action was brought by the plaintiff for the purpose of procuring specific performance of an alleged agreement for the leasing of certain premises in the city of New York owned by the defendant, which, as was alleged, he agreed to lease to the plaintiff upon certain terms mentioned in the alleged agreement. The defendant denied the making of any such agreement; and, upon trial before a single judge, it was found that the agreement as alleged by the plaintiff had been made; and as the defendant had failed to execute the lease, and had in the mean time sold the premises, the court found that the plaintiff was entitled to recover of the defendant the damages sustained by him by reason of defendant's neglect and refusal to carry out the agreement already referred to. The court ordered a reference to ascertain and assess the damages, and to report to the court. Upon the trial the plaintiff, for the purpose of proving the agreement set up in the complaint, offered in evidence, and the same was received, a certain letter, of which the following is a copy: ‘New York, January 29, 1885. Mr. James McCreery-Dear Sir: I will take your building, 483 Fifth avenue, on a twenty-one years' lease from May 1, 1885, to be altered by you similar to the one Hume & Co. is now altering, and floors, &c., arranged as spoken about, &c., at the yearly rent of $5,250 for each year of the term, net rent. No taxes, assessments, &c. Plans, &c., to be mutually agreed upon. Yours, very respectfully, MAX MAYER. Building must be ready on May 1, 1885.’ On the same 29th of January the defendant sent to plaintiff a written acceptance of his offer, of which the following is a copy: ‘New York, Jan'y 29, 1885. Mr. Max Mayer-Dear Sir: Yours of this date, making me an offer on building No. 483 Fifth avenue for a twenty-one years' lease, has been received. I hereby accept your offer. Very truly yours, JAMES McCREERY.’ On the 2d day of February, 1885, the defendant wrote to the plaintiff a letter, of which the following is a copy: ‘New York, February 2, 1885. Max Mayer-Dear Sir: I have submitted the correspondence regarding a lease from me to you of premises No. 483 Fifth avenue to my counsel, and am advised that there are difficulties which will prevent the making of a lease as proposed. You will therefore understand that the proposed lease cannot and will not be made. Very truly yours, JAMES McCREERY.’ The judge found that the above letters were the only memorandum in writing signed by the parties, or by either of them, in regard to the lease of the premises, and that they constitute the only agreement that was made in relation thereto. He also found that the plaintiff has at all times been, and still was, ready and willing on his part to comply in all respects with the provisions and requirements of the agreement, and to pay the stipulated rent for the premises.

The question is whether these letters constitute a completed agreement, forming in substance a lease of the premises referred to therein. We think they do not. The substance of the agreement is that the lease of the building is to be given by the defendant; but, before it is to be done, alterations of the building similar to the one Hume & Co. ‘are now altering’ should be made, and that plans for such alteration should be thereafter mutually agreed upon. It is in substance an agreement that, if the parties shall thereafter agree upon plans for the alteration of the building, thereupon a lease of the building upon the terms specified in the letters will be given by the defendant to the plaintiff. The whole language is conditional, and that condition is a future agreement between the parties as to the plans and scope of the alterations which are to be thereafter made by the defendant. It is conceded that no such agreement was ever thereafter entered into. On the contrary, the defendant, by his letter of the 2d of February, absolutely declines to make the lease; and the parties do not, as matter of fact, mutually agree upon the alterations to be made. We think it was entirely immaterial what reason was...