Mayor v. Sonneborn

• Decision Date: 16 April 1889
• Citation: 113 N.Y. 423,21 N.E. 121
• Parties: MAYOR, ETC., OF THE CITY OF NEW YORK, v. SONNEBORN.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 423

21 N.E. 121

MAYOR, ETC., OF THE CITY OF NEW YORK,

v.SONNEBORN.¹

Court of Appeals of New York.

April 16, 1889.

Appeal from supreme court, general term, First department.

Action by the mayor, etc., of the city of New York against Jonas Sonneborn for the rent reserved on the lease of a pier. A judgment for plaintiff was affirmed by the general term, and defendant appeals.

A. J. Dittenhoefer and David Gerber, for appellant.

D. J. Dean and William Turner, for respondent.

DANFORTH, J.

On the 21st of April, 1873, the defendant took a lease from the plaintiff, through the commissioners of the department of docks, of a certain pier in the city of New York, for the term of five years, from the 1st of May, 1873, and agreed to pay therefor the annual rent of $5,000, in equal quarterly payments, the first payment to be made August 1, 1873. He took and retained possession of the premises, but failed to pay the rent due August 1, 1874, November 1, 1874, and February 1, 1875, and this action was brought for its recovery. The defendant answered, denying none of the material allegations of the complaint, but setting up new matter by way of defense. At the trial he at once assumed the affirmative, and put his defense on the sole ground that the lease was not made after or in pursuance of any sale by public auction of the privilege conferred thereby. This was conceded by the plaintiff, and found by the court to be the fact, and the only question upon this appeal is whether the court below erred in holding that it constituted no sufficient answer to the plaintiff's cause of action. The appellant relies upon the statute, (infra,) which declares that ‘all leases other than for districts, appropriated by said board to special commercial interests, shall be made at public auction, to the highest bidder,’ (Laws 1870, c. 383, § 37;) and his contention is that by reason of the omission to comply with this provision the lease is illegal and void, and his contract not enforceable. No fraud is alleged, nor is it disputed that the plaintiff has performed every obligation on its part, and the appellant has had the full benefit of the lease in the use of the premises demised, and the collection of wharfage, according to its terms. I find nothing in the statute which, under the circumstances, need embarrass the defendant in fulfilling the obligation which he incurred. The department of docks have by statute an absolute and exclusive discretion in determining what piers shall be leased, and for what terms, not exceeding 10 years, (Laws 1871, c. 574; Laws 1873, c. 335, § 88; Laws 1882, c. 410, § 716;) and are given a general authority to make leases...