Orr v. Doubleday, Page & Co.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: COLLIN
• Citation: Orr v. Doubleday, Page & Co., 223 N.Y. 334, 119 N.E. 552 (N.Y. 1918)
• Decision Date: 23 April 1918
• Parties: HENRY S. ORR et al., as Executors and Trustees under the Will of JOHN C. ORR, Deceased, Respondents, v. DOUBLEDAY, PAGE AND COMPANY, Appellant.

223 N.Y. 334

119 N.E. 552

ORR et al.

v.DOUBLEDAY, PAGE & CO.

Court of Appeals of New York.

April 23, 1918.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Henry S. Orr and another, executors and trustees under the last will and testament of John C. Orr, deceased, against Doubleday, Page & Co. From a judgment of the Appellate Division (172 App. Div. 96,157 N. Y. Supp. 1009) affirming a judgment in favor of the plaintiffs entered upon a directed verdict, defendant appeals. Affirmed.

Reargument denied 119 N. E. 1064.

The nature of the action and the facts, so far as material, are stated in the opinion.

Dean Emery, of New York City, for appellant.

Alfred B. Cruikshank, of New York City, for respondents.

COLLIN, J.

[1] The action is to recover rent accruing through the months of November and December, 1914, and January, 1915. Upon the trial a verdict in favor of the plaintiffs was directed. The consequent judgment was affirmed by the Appellate Division. We are to determine whether or not the evidence presented an issue of fact; in reviewing it we must give the defendant the advantage of all the facts properly presented and of every favorable inference that can be reasonably drawn.

[2] The defendant, a domestic corporation, as the tenant, and John C. Orr, the plaintiffs' testator, as landlord, entered into a written lease of the premises in question, 133-137 East Sixteenth street, Manhattan, New York City, for a period beginning on November 1, 1904, and expiring October 31, 1914, ‘with the privilege to said tenant of a renewal for another term of ten (10) years, upon the same terms as are contained herein. But should said tenant elect to renew the within lease for said term of ten (10) years, then and in that event it will by a notice in writing notify said landlord, his heirs or assigns, at least ninety days prior to the expiration of the term hereby created, of such intention to renew said lease.’ The tenant was prohibited from assigning the lease. The judgments thus far have held the defendant liable, as a matter of law, for the rent for the additional or renewal period of ten years.

Prior to January, 1911, the defendant had removed its establishment and plant to premises of its own and desired to be free of the obligations of the lease. Prior to March 29, 1911, negotiations having that end in view were had between the defendant, the plaintiffs and their attorney, and the Irving Place Leasing Company as a potential tenant in the stead of the defendant. Propositions were discussed, a statement of which is not essential to the clarity of our decision or the reasons for it. During the negotiations, and on March 29, 1911, the defendant notified in writing the plaintiffs as follows:

‘Under the terms of our lease of the Sixteenth street building, we have the right to renew for a period of ten years on the same terms. We hereby notify you that it is our intention to take advantage of our rights and renew for a period of ten years, beginning November 1, 1914, terminating October 31, 1924, with the understanding that this notice is to be withdrawn if the court consents to accept the transfer of the lease now in course of negotiation to the Irving Place Leasing Company, in which event the estate of John C. Orr is to consent to the assignment of our lease to the Irving Place Leasing Company as per agreements now pending.’

There was no further action of importance until that of October 28, 1912, consisting of a letter from the defendant to the plaintiffs, which said:

‘On or about March 29, 1911, we notified you of our intention to renew the lease for the property at 133 East Sixteenth street for a period of ten years, taking advantage of the option given us in our lease. The second term begins November 1, 1914. The present tenant of the building, the Irving Place Leasing Company, desire to give to a prospective tenant a five-year lease for the fifth floor of the building, and have requested us to give them the lease for the second term, namely, from November 1, 1914, to November 1, 1924. Won't you please send us communication acknowledging receipt of our notice to you of our intent to take advantage of this option? * * *’

The majority of my Brethren sitting in the case have concluded that the notification of March 29th was, within the provision of the lease, the notification by the defendant to the plaintiffs of its intention to renew the lease for the additional ten years, and not, as the appellant asserts, an independent proposal to renew it on new terms, which would have effect only upon an acceptance of them declared by the plaintiffs. The language of the notification is direct, unequivocal, and conclusive. The acts of or the circumstances surrounding the parties could not make the meaning of it determinable by the jury, and the rulings of the court based upon such holding were not erroneous. It expressed and gave notice of the intention to renew the lease. The intention and its expression were absolute and unconditional. The defendant did not propose a change in or addition to the terms contained in the lease. It reserved or retained the right to withdraw or annul the intention and notification in case the events expressed in the letter occurred, and that was the right which was conditional. The defendant stipulated to withdraw the notification only if the court approved the transfer of the lease and the plaintiffs consented to its assignment. It was the withdrawal of the notification, and not the taking of the new term, which was conditioned upon the approval of the court and the consent of the plaintiffs. The notification contained no offer for the plaintiffs to accept or reject. It proposed no new term or condition to be acted upon by them. It, in effect, said to them, We intend to renew the lease for another term of ten years, upon the same terms as are contained in it; we retain the right to annul our intention in case the specified consent of the court and that of yourselves are had; until then and the annulment of our intention and notification they exist precisely as they would had no right of annulment been retained. The conditions permitting their annulment never existed. Therefore the intention and notification remained.

[3] We are...