Majority
Headnote
1. Specific Performance (§ 28[2] )—Contracts—Enforcement—Certainty.This is an action for the specific performance of an oral agreement to execute a lease. The defendant Sarah J. Brooks was the owner of a leasehold estate in premises situated on the north side of West Fifty-Fifth street, between Eleventh avenue and the Hudson river, in the borough of Manhattan. When the contract in suit was made, her lease had 11 years and 3 months to ran and contained a provision that, at its termination, the landlord at his option would either purchase any buildings that may have been constructed upon the premises, at a price to be determined in a specified manner, or would grant a renewal of the lease for a similar term. The rent reserved was $1,500 a year. It is undisputed that the defendant Racich approached the defendant Charles J. Brooks, a son of the defendant Sarah J. Brooks, with a proposition to lease the said premises or a part of them for the purpose of conducting thereon his business of manufacturing asbestos materials. He also proposed to give Charles an interest in the business, if the latter could contribute $10,000. Thereupon those propositions were submitted to Mrs. Brooks, who agreed to give a lease of a part of said premises and. to loan Charles $10,000 to invest in the business. It was thereupon arranged to organize a corporation, with a capitalization of $50,000. A certificate, incorporating the plaintiff, was filed on January 24, 1907, and on January 31, 1907, Mrs. Brooks executed a lease to the defendant Racich and her son Charles. Thereafter the organization of the plaintiff was completed by the issuance of stock and the election of officers, and it proceeded to erect upon the premises a building costing between $20,000 and $25,000. .The lease of January 31st provided for an annual rental of $1,600 for the term of 11 years and 3 months, and it contained this provision:
“It is further agreed that in case said tenants or their assigns erect any additional structure or building upon said premises or any part thereof, that any and all additional municipal tax which may be assessed because thereof is to be paid by said tenants or their assigns. * * * ”
[1, 2] Although the agreement was void for not being in writing, I shall assume that, if satisfactorily established, it has been so far performed as to be taken out of the statute of frauds. It is an elementary rule that a court of equity will not enjoin specific performance of an agreement unless it is definite and certain in its terms. Stanton v. Miller, 58 N. Y. 192 ; Sharkey v. Larkin, 52 N. Y. 623 ; Mayer v. McCreery, 119 N. Y. 434 , 23 N. E. 1045 . It is also well settled that, to justify specific performance of a contract, it must be ■established by satisfactory proof. Lobdell v. Lobdell, 36 N. Y. 327 .
[3] The evidence to establish the agreement consists of the testimony of the defendant Racich. He testified: That at the first interview between him and the defendants, Sarah J. Brooks and Charles J. Brooks, the old lease was produced and read aloud by the latter. That then “it was said, ‘Will we get that lease, the same lease you Lave ?’ He (meaning Charles) said, ‘The same thing.’ * * *. I .asked them, ‘Is that the same lease they are going to give to us ?’ She ■said: ‘Yes, the same lease; I cannot give you any more but just what I have got.’ ” Referring to this conversation on cross-examination, be testified that Mrs. Brooks said: “I will give you the same terms ■as I got; you cannot expect any more.” And further, “They gave us the same term as in this lease.” It is claimed that, after the dispute arose, Mrs. Brooks made certain admissions, which tend to support the plaintiff’s theory. But the statements relied upon were equivocal at the best, and, in view of the circumstances under which they are ■claimed to have been made, we attach no importance to them. The plaintiff’s case, therefore, rests upon the testimony of the defendant Racich, which, as qualified on cross-examination, leaves it doubtful whether the old lease was referred to, except as fixing the term of II years and 3 months for which the new lease was to be given. It plainly appears that the agreement was not one to give a lease identical with the old lease, because the lease first executed, pursuant- to the ■agreement, provided for an annual rental of $1,600 instead of $1,500 and for only a part of the premises leased to Mrs. Brooks, and there is no dispute but that, in those respects, it conformed to the agreement. That lease was drawn by Mr. McAdam, who represented Mrs. Brooks,- pursuant to instructions given to him by the defendants Racich and Charles J. Brooks. The provision for the purchase of the buildings or for the renewal of the lease upon its termination was an important one, and, if it had been in the minds of the parties, it is highly improbable that the defendant Racich would have accepted a lease, so soon after the agreement was made, which did not embody that provision in its terms. The lease accepted by him was not drawn without reference to the contemplated building, because it contained the express provision in relation thereto hereinbefore quoted. The
We have then, so far as the disputed point is concerned, the following elements: An alleged agreement, void for not being in writing; the evidence, relied upon to establish it, somewhat equivocal and, at the best, unsatisfactory; a preponderance of evidence against the making of it; a writing made under such circumstances that, presumably at least, it included all of the terms of the oral agreement. We think that, under those circumstances, the court was not justified in decreeing specific performance.
The judgment should be reversed, and a new trial granted, with costs to appellant to abide the final award of costs. All concur.
Cases cited
- Stanton v. Miller 58 N. Y. 192 p. 384
- Sharkey v. Larkin 52 N. Y. 623 p. 384
- Mayer v. McCreery 119 N. Y. 434 p. 384
- Lobdell v. Lobdell 36 N. Y. 327 p. 384