Opinion
July Term, 1901.
Plaintiff's exceptions overruled and judgment on the verdict ordered, with costs to the defendants.
This is the second time this case has been before this court upon orders to hear the exceptions in the first instance here. On the former trial the jury found a verdict for $2,000 in favor of the plaintiff, but this was reversed because it contained an award for plans for a hotel. ( 46 App. Div. 222.) Upon the second trial the hotel plans were wholly excluded from the consideration of the jury, and a verdict for the plaintiff for other work was found for $681. The exceptions were ordered to be heard in the first instance here, but the defendants have abandoned their exceptions, and the exceptions of the plaintiff only are now before us. The plaintiff, notwithstanding the very clear intimation of the court upon the former argument that there could be no recovery for the work alleged to have been done by the plaintiff in preparing plans for a proposed hotel, made a persistent effort to include evidence of this work in the record, and it is now urged that it was error for the trial justice to exclude testimony showing how similar suburban property is usually developed, and to refuse to submit the question of employment and liability to the jury. The claim of the plaintiff grows out of an employment by Edwards Lowerre, real estate dealers and brokers, who appear to have been associated in a partnership with certain capitalists represented by Joel B. Erhardt as trustee in an extensive real estate speculation. The principal question before the court when the case was last before us was whether there was a partnership, and this question was determined in favor of the plaintiff, it being held that as to third parties the relations of the defendants were those of copartners. These capitalists, who were known as the "Erhardt, Edwards Lowerre Syndicate," purchased a tract of land in Greenburgh, Westchester county, which was conveyed by deed to Joel B. Erhardt, as trustee, on October 31, 1890, subject to a mortgage of $422,000, and a written agreement was entered into between the parties, in which it was provided that "the trustee shall issue to each subscriber hereto, preferred and common certificates in the form hereto annexed, * * * and the further sum of thirty-five thousand three hundred dollars ($35,300) in preferred certificates * * * and a similar amount in common certificates, which preferred certificates and one-half of the said last-mentioned common certificates are to be sold and disposed of for the purpose of raising money to develop and prepare for the market said properties," etc. It will thus be seen that there was a provision for raising not to exceed $52,950 for the development and improvement of the property in preparing it for market. It was further provided that "the proceeds of the sale of said properties, after the payment of taxes and assessments and the necessary expenses of developing, managing and selling the same, are to be applied by said trustee in the manner stipulated in said certificates, such application to be made as often as there shall be twenty-five thousand dollars ($25,000) on hand, and oftener, if the trustee thinks proper." On the face of this agreement it is clear that there was no intention on the part of the subscribers to the fund to provide for the erection of a hotel to cost in the neighborhood of $115,000, because the fund for the improvement and preparation of the same for market was limited to less than one-half this amount, and the accumulations were to be distributed whenever $25,000 had been brought together, and oftener, if the trustee thought proper. The plaintiff, however, insists that the language of the contract is ambiguous, and that he has a right to show that other properties of this character were developed by means of the erection of hotels and cottages. The rejection of this character of evidence is the main question raised by the exceptions. The answer to this is that the plaintiff was not a party to this contract, and as no one who had interests under its provisions has raised any question as to its meaning, it is not for a third party to say that the construction formerly put upon it by this court and sanctioned by all of the persons who were parties to the original agreement, is not the correct one. The fact that other syndicates under other agreements, the details of which are not before this court, may have erected hotels or cottages as a means of inviting people to settle upon suburban tracts, has no bearing upon the question presented under the agreement set forth in this action, and we are entirely clear that the trial court did not err in excluding the evidence offered upon this point. There is no ambiguity in this contract upon this point; no suggestion that any one acting under its provisions is to be governed by custom, or that they are authorized to expend any sum in excess of that provided for in the agreement, which of itself is entirely inadequate to the construction of the proposed hotel, not to mention the work which is outlined in the way of constructing bridges, grading and opening streets and many other things which would be necessary to put the property in a condition to be sold. No one would think of the erection of a magnificent hotel as an incident to the development, management and sale of a plotted tract of real estate, unless the fact were to be specially mentioned in the agreement. When we consider that the whole tract was valued at $422,000, and that the proposed hotel, for which the plaintiff demands compensation for the drawing of the plans, involved an expenditure of $115,000, for which no adequate provision of funds was made, it becomes obvious that this was entirely outside of the partnership agreement existing between the defendants, and that the plaintiff cannot recover for this work in the action now before us. The other questions involved in this action were disposed of upon the occasion of the former hearing of the exceptions ( 46 App. Div. 222), and it does not seem necessary to follow the discussion further. The exceptions should be overruled and judgment entered on the verdict, with costs to the defendants. All concurred, except Goodrich, P.J., taking no part.