Opinion
Argued May 13, 1904
Decided June 3, 1904
Charles Blandy and Samuel C. Mount for appellant. William H. Harris for respondent.
The only exception presented by this record is that taken by the plaintiff to the court's dismissal of the complaint, and the single question we are called upon to decide is whether, upon the facts established, the plaintiff was entitled to have the case submitted to the jury. This question is to be determined in the light of the facts and inferences most favorable to the plaintiff. ( McDonald v. Met. St. Ry. Co., 167 N.Y. 68.)
The plaintiff claims to be entitled to the award of $2,500, which was made to the defendant in the proceedings above referred to. This claim has been prosecuted in the form of an action as for money had and received. This form of action is authorized by section 993 of the New York Consolidation Act, and has been approved in Spears v. Mayor, etc., of N.Y. ( 87 N.Y. 359). It has also been held that it is no defense to such an action that the award was excessive or inequitable. ( De Peyster v. Mali, 92 N.Y. 262.)
The lease to the plaintiff gave him the right at the expiration of his term to remove the buildings for which the award was made. This clause in the lease is consonant with and supplemented by the plaintiff's testimony that he was the owner of the buildings. If these were the only facts in the case, it would be too obvious for discussion that the plaintiff was entitled to remove the buildings when his lease expired, and it would follow as a necessary conclusion that he is entitled to the award for them which has been paid to the defendant. There is, however, the other quoted clause of the lease under which it was stipulated that the defendant should be entitled to all amounts paid or awarded for the taking of the premises by the public authorities, the rent reserved having been fixed in contemplation of such taking, and that plaintiff, in case of such taking, would make no claim for damages against the defendant. There is in evidence also the admission of the plaintiff that at the time he accepted his lease there was pinned to a corner of it a memorandum to the effect that he was to be allowed one hundred dollars for repairs.
At first glance, the clause of the lease which provides that the defendant shall be entitled to any payment or award for the taking of the premises, seems to be dominant and exclusive. But when both of the quoted clauses are read together, as they must be in the effort to ascertain the intent of the parties, it seems clear that each may be given effect without destroying the other. Under the first clause the defendant, as owner of the land, is to receive any award for the taking thereof and the plaintiff, as tenant, waives all right to damages for interference with or abridgment of his possession or term. In other words, the owner is to take the award just as he would if there were no lease, and the tenant waives his right to any part of it, as well as any claim for damages against the owner. Under the second clause the tenant, if he has complied with the conditions of the lease may, at the expiration of his term, remove the buildings which he claims to own. Thus construed these clauses of the lease are consistent with each other. Unless they are thus construed, one or the other must be held to be meaningless. Under the well-established rule that contracts must, if possible, be so construed as to give effect to all their parts, we think neither of these provisions is repugnant to the other. This view is strengthened by the fact that the first clause contains a provision for a proportionate reduction of the rent in case the tenant should be actually evicted during his term. This circumstance strongly indicates that it was the intention of the parties to make the owner the recipient of all the land damages, including such as might otherwise have been awarded to the tenant for any abbreviation of his term; and to limit the tenant's right to the removal of his buildings, and to a ratable reduction of rent in case of eviction.
Counsel for the defendant also contends that if the plaintiff ever had any right to the buildings, it was lost by his failure to remove them promptly at the expiration of his lease. The facts do not sustain this claim. It appears that the plaintiff remained in possession of the demised premises from the 1st to the 18th of May, 1896, with the consent of the defendant. As there was no new lease and the rent was the same as it had been during the previous year, it was a holding over on the terms expressed in the lease, and these included plaintiff's right to remove the buildings. ( Lewis v. Ocean Nav. Pier Co., 125 N.Y. 341.)
On May 18th, 1896, the report of the commissioners of estimate and appraisal was confirmed and title to the lands then vested in the city. The latter, having paid $2,500.00 for the buildings, became the owner thereof, and the defendant, having received the award for the buildings, held the same for the use and benefit of the plaintiff. Upon this state of facts we think it was error to dismiss the complaint. Whether the plaintiff's rights upon another trial will depend wholly upon the construction which we have given the clauses of the lease above referred to, or whether they may rest in part upon extraneous facts, some of which have been noted, we do not now decide. If the plaintiff was not entitled to the direction of a verdict in his favor, he had at least the right to have the case submitted to the jury.
The judgment of the court below should be reversed and a new trial granted, with costs to abide the event.
The court below, I think, disposed of this case correctly. The plaintiff had no title to the award, and had no more title to the buildings than he had to the land on which they stood. The title to the land, as all admit, was in the defendant, and the title to the buildings was never separated from that of the land. The plaintiff's stipulation in the case is to the effect that the defendant shall be entitled to the award. The provision that at the termination of the lease the plaintiff should have the right to remove the buildings has no application, except in case the right of eminent domain was not exercised by the city. The fact that under the first provisions of the lease the land and the buildings were taken by the city rendered impossible the contingency upon which the right of the plaintiff to remove the buildings depended.
The principles decided by this court in a recent case control this appeal. ( Matter of Mayor, etc., of N.Y., 168 N.Y. 254.) There is no distinction in principle between that case and the one at bar, and so the judgment should be affirmed.
PARKER, Ch. J., GRAY, BARTLETT, MARTIN and VANN, JJ., concur with WERNER, J.; O'BRIEN, J., reads dissenting memorandum.
Judgment reversed, etc.