Opinion
March 31, 1966
Order, entered on November 17, 1965, appealed from unanimously reversed on the law and the motion for summary judgment denied, with $50 costs and disbursements to abide the event. Plaintiff, for 35 years a tenant in possession of the premises involved, instituted this action for a determination that the lease had been renewed as a result of certain communications between the parties. Sometime prior to November 13, 1964, the parties met and conferred upon the terms of a new lease. By letter dated November 13, 1964, plaintiff addressed a letter to Chase Manhattan Bank (Chase) managing agents for the property. In that letter plaintiff referred to an earlier conversation had with a Mr. Winters of Chase's Real Estate and Mortgage Department, and submitted an "offer" for a seven-year extension of the lease which is scheduled to expire December 31, 1967. By letter dated December 23, 1964, Chase acknowledged receipt of such letter and offer, and stated they were authorized by the owners "to submit for your approval the following rentals for the additional period" and quoted figures somewhat higher, together with an additional condition with reference to the installation of a boiler in the premises. The letter concluded: "So that we may present your rental offer to our Committees for approval, we would appreciate it if you will indicate your approval or disapproval of the above rentals by signing the enclosed copy of this letter and returning it to us as promptly as possible." Failing to receive a reply from plaintiff, Chase by letter dated December 30, 1964, stated "we are compelled to inform you, that, unless we receive the copy of the above letter [of Dec. 23, 1964], indicating your rejection or acceptance of the proposed rental, by noontime on January 8, 1965, we regretfully will terminate any further negotiations and will consider the offering to submit the terms outlined in this letter null and void as of that date" (emphasis supplied). Plaintiff dated its approval of the December 23 letter January 6, 1965, and immediately forwarded the same, which presumably was received the following day. At any rate no question is raised on that score. It is on the basis of the foregoing that defendants moved to dismiss the action pursuant to CPLR 3211 (subd. [a]) on the ground that it has "1 a defense founded on documentary evidence". Chase contends that it made no offer in writing but merely proposed that plaintiff amend the terms of its renewal offer. Plaintiff asserts it is entitled to a trial of the issue in light of the language of the letters and the practice between the parties which existed over the years. We agree. Plaintiff made an "offer" in its initial letter, and it was clearly recognized as such by Chase which, however, submitted an authorized proposal of a slightly different nature. Whether this was a counter-offer intended to be binding upon unequivocal acceptance, or whether it was, as defendants contend, a proposal that plaintiff amend its original offer does not clearly appear. The intention of the parties as gathered from the entire transaction will be the criterion for determining whether there was such a meeting of the minds in fact or in law, as to constitute a binding obligation. The offer and counter-offer, or counter proposal, in the context in which they appear in the letters suggest they might not have been used in the rigid technical sense as applied in the law generally. The documents are not conclusive on the question here involved. In consequence of the ambiguity the issue should be resolved at a trial.
Concur — Botein, P.J., Breitel, McNally, Stevens and Bastow, JJ.