New York & Brooklyn Ferry Co. v. Mayor of New York — 66 N.Y. St. Rep. 238

Majority

p. 238

The New York and Brooklyn Ferry Company, App’lt, v. The Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

(Court of Appeals,

Filed May 21, 1895.)

Headnote

1. Ferry—Lease—Renewal.

Under the revised charter of 1870 (chap. 137 of 1870), the city of New York was under no obligation to renew a lease of ferry rights at the same rental as provided for under the old lease.

2. Same—Buildings.

"Where the ferry company, to whom the new lease was executed, was organized by the officers of the former company for its benefit and that of its stockholders, the new lease is in effect issued to the former company and it has no cause of action, upon the covenant in the old lease, to recover the value of the buildings and ferry fixtures erected by it.

Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order which affirmed a judgment in favor of defendant entered upon a verdict, and also affirmed an order denying a motion for a new trial.

John M. Scribner, for app’lt; James C. Carter, for resp’t.

This action was brought to recover the value of certain buildings and ferry fixtures erected by the plaintiff at the foot of Roosevelt street, in the city of New York.

It appears that on the 26th day of November, 1867, the defendant granted to the plaintiff the right to operate a ferry across the East river from the foot of Roosevelt street to South Seventh street, in the city of Brooklyn, together with a lease of certain slips and bulkheads for the term of ten years, or until November

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1st, 1877, at the annual rental of $4,900; that in and by the terms of the lease the plaintiff at its own proper cost and charges was to build and erect necessary bridges, floats and other fixtures at each landing place of the ferry and to keep the same in repair, together with the necessary docks and piers, and at the termination of the lease to surrender and yield up the said ferry, together with the bulkheads, piers, docks, floats, bridges, fixtures and improvements which may have been erected for the use of the ferry at the foot of Roosevelt street in good order and condition, subject, however, to the rights reserved to the plaintiff by the forty-first section of the charter of 1857, the provisions of which are as follows : “ All persons acquiring any ferry lease or other franchise or grant under the provisions of this act shall be required to purchase at a fair appraised valuation the boats, buildings and other property of the former lessees or grantees actually necessary for the purpose of such ferry grant or franchise.”

It further appears that one John English also held a lease from the defendants of a pier in the East river adjoining that leased to the plaintiff'at the foot of Roosevelt street at an annual rental of $1,500 per year, which he assigned to the plaintiff, who used the same in connection with the ferry rights acquired in and by the first-mentioned lease, and that in 1871 the New York and Brooklyn Bridge Company entered into negotiations with the plaintiff, defendant and one John L. Brown, who occupied adjoining premises, to acquire the lands so leased and held by the plaintiff, for the purpose of locating thereon the New York end of the bridge, which negotiations resulted in what is known as the quadrupartite agreement, in which the plaintiff agreed to release the premises-occupied by it as a landing place for the ferry, and to accept in lieu thereof certain other premises adjoining, including those occupied by Brown, and for the purpose of effecting such change it was paid the sum of $80,000 with which to construct buildings, bridges and other necessary ferry fixtures upon the abutting piers in the place of those existing upon the piers released to the bridge company. Pursuant to this agreement, and on the 4th day of April, 1871, the mayor, aldermen and commonalty of the city of New York, as party of the first part, made and executed to the plaintiff, as party or the second part, a lease of the premises described in the quadrupartite agreement, taken in place of those covered by the former lease for the unexpired term of that lease, at the annual rental of $6,400. - In and by this lease it was provided, “ and the said party of the first part, for itself, its successors and assigns, covenants and agrees by these presents to and with the said party of the second part, its successors and assigns, that the buildings and ferry fixtures that shall be put upon the hereby-granted and demised premises shall be paid for by the said party of the first part, its successors and assigns, to the said party of the second part, its successors and assigns, if a new lease shall not be granted to the said party of the second part, its successors, and assigns, in the manner provided for in and by the said first-mentioned recited identure or lease.” At the termination of this lease the plaintiff demanded from the officers of the city a re

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newal thereof at the same rental which was refusedj and thereafter the ferry grant and lease was made to the New York Ferry Company for the term of five years at the annual rental of $15,050 per year. This action was brought under the above-quoted covenant.

The first question presented for our determination is as to whether the plaintiff was entitled to a renewal of the lease at the same rental, or in default thereof to recover pay for the buildings and ferry fixtures constructed by it upon the premises referred to. This question involves a construction of the provision of the lease. Does the phrase “ in the manner provided for in and by the said first-mentioned and recited indenture of lease" relate to the provision with reference to the new lease which immediately precedes it, or does it relate back to the provision with reference to the payment for the buildings and ferry fixtures ? In answering this question we should look for the intention of the contracting parties as disclosed from the surrounding circumstances and the history of the transaction. By referring to the charter of 1857, we find that ferry rights were required to be let to the highest bidder for a term not to exceed ten years, and under it the only way in which the ferry company could have a renewal of its lease was by again becoming the highest bidder therefor. No agreement could, therefore, be entered into for a renewal at the same rental, but instead thereof we have the provisions of the forty-first section in which the ferry company was awarded the fair appraised valuation of its buildings and fixtures, which was required" to be paid for by the new lessees. These provisions were omitted by the revision of the charter in 1870 (chap. 137), but we apprehend the rights of the parties remained unchanged, for the charter of 1857 and the provisions of section 41 were distinctly referred to and made a part of the lease of 1867. We thus have the policy of the city distinctly indicated. It was to grant rights to operate a ferry together with a lease of the necessary piers for landing purposes for a limited term of years to the highest bidder, leaving it to the lessee to construct and maintain the necessary buildings and ferry fixtures, undertaking, however, that he shall be paid therefor the fair appraised value at the expiration of his lease by the persons or company succeeding thereto in case he should fail to acquire a new lease. We find nothing in the provisions of the revision of 1870 that indicates a change of policy in this regard. Chapter 876 of the Laws of 1869 was not repealed. By it the granting of ferry rights was transferred to another department of the city government; but nothing is found in the provisions of that act or of the new revision authorizing the city, or any of the officials thereof, to enter into the business of constructing buildings or ferry fixtures upon the piers or docks owned and controlled, by it, or to continue leases at the same rental, rather such an idea would seem to be negatived by the fact that the statute still retains the provision prohibiting a lease for a longer term than ten years, thus leaving it in the hands of the officers then charged with the duty of letting to determine the amount that should be demanded and the conditions imposed. There is nothing in the provisions of the old lease specifying or

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providing the manner or conditions upon which a renewal lease should be given. There is, however, a provision relating to the manner in which the lessee shall be paid for his buildings and fixtures, from all of which we conclude that the phrase alluded to was intended to refer to the payment for the buildings and fixtures and not to the renewal of the lease. So construing the covenant, it follows that the defendant was under no obligation to renew the plaintiff’s lease at the same rental paid under the old lease.

It remains to be seen whether a new lease was in effect issued to the plaintiff. This question was carefully tried and submitted to the jury, who found in favor of the defendant. Our reading of the appeal book leads us to conclude that this verdict is well sustained by the evidence. The new lease was issued to the Hew York Ferry Company, a corporation with a different name, but it was organized by the officers of the plaintiff evidently for its benefit and that of its stockholders and for the purpose of enabling the plaintiff to maintain this action. It consequently follows that as yet no breach of the covenant sued upon has been shown. The plaintiff in effect became its own successor under a new name and as such has no cause of action for the buildings and fixtures in question during the lifetime of its new lease.

The judgment should be affirmed, with costs.

All concur. Judgment affirmed.