Q. R. S. Co. v. Phillips-Jones Corp.

Headnote

Contract — easements —• grant of easement to connect with railroad siding on defendant's land for term of years to commence upon completion of construction not more than six months- from date — when time not of essence of contract.

Q. B. S. Co. v. Phillips-J ones Corporation, 194 App. Div. 170 , affirmed.

Appeal from a judgment entered January 18, 1921, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff. Defendant owned a parcel of land in the city of New York on which was a railroad siding. Plaintiff, being about to purchase an adjoining parcel of land and requiring railroad' facilities entered into an

agreement with defendant whereby the latter in consideration of certain payments to be made granted to the plaintiff an easement to use its siding and construct an extension thereto on to its property “ for a period of ten years from the completion of the construction of the extension of said siding, which date of completion shall be not more than six months from the date hereof.” Plaintiff by reason of delay in obtaining necessary permits from city authorities, was unable to start work on the siding until after the expiration of the six months’ limitation and defendant having refused an extension of time brought this action to enjoin the defendant from interfering with the construction of this siding and the making of the connection on the plaintiff’s premises. The Appellate Division held that time was not of the essence of the contract, and that the construction might be delayed if necessary beyond the six months without a forfeiture of the plaintiff’s rights under the contract.