109 N.Y.S. 31 | N.Y. App. Div. | 1908
The following is. the opinion of the court below : •
By an instrument dated on the 14th day of February-, 1893, the defendant leased to the plaintiff the railroads Owned, constructed or operated by it,- and also all real estate owned by it. situate in either of the, counties of Kings or Queens. By this instrument it was, among Other things, provided that-if the continued use of any real estate included in or covered by the terms of said lease should not be necessary or required for the maintenance or operation of said railroads, their extensions or branches, then the defendant with the consent in writing of the plaintiff, might sell and dispose of the same. -It is conceded that the defendant, with the consent .of the plaintiff, has disposed of a considerable portion of such real ’ estate, and now has in its-, possession-a sum in excess of §78,000 as the proceeds thereof. By the terms of the said .lease it was further’ agreed that the proceeds of such sales should be expended by .the defendant in payment of the cost of such additions, improvements, extensions, branches and equipments to the said railroads and properties belonging to it as iñ its judgment and in that of the plaintiff should be .necessary or.advantageous to the property