154 N.Y.S. 638 | N.Y. App. Div. | 1915
Lead Opinion
This action was brought to recover rent for news stand and other privileges at the Manhattan terminal of the Staten Island
It appears that on April thirtieth the commissioner in a conversation with the attorney for defendant attempted orally to reject the bid, claiming that the right to reject had been reserved when the privileges were, knocked down to defendant, and that the attorney for defendant stated that he would like to talk the matter over- with his clients and later notified the assistant secretary to the commissioner that he would hold the city to the bid.
The case was tried by consent by the court without a jury. There was a disputed question of fact with respect to whether at the time defendant’s bid was accepted by the auctioneer it was announced that it was accepted subject to subsequent rejection by the commissioner. The assistant secretary of the commissioner testified ¿hat on the receipt of defendant’s bid, no higher bid being offered, he consulted with the commissioner, who was in the adjoining room, and then authorized the auctioneer to accept the bid subject to the right of the commissioner to reject it, and that the auctioneer so announced, and that he then authorized the cashier's office to receive the rent for the first quarter subject to the reservation. The second deputy commissioner was present and gave corroborating testimony with respect to the announcement, as did a messenger in the department. On the part of defendant, one of its super
The general rule is, and it is, I think, particularly applicable to an auction sale, that a right reserved to reject any or all bids is to be exercised before the acceptance of any bid, and that the auctioneer is the agent of the vendor and his act in accepting a bid is the act of the vendor. (Brown v. City of New York, 57 Misc. Rep. 433; affd. on opinion below, 128 App. Div. 925; Lynch v. Mayor, 2 id. 213; Kerr v. City of Philadelphia, 8 Phila. 292; Payne v. Cave, 3 Term Rep. 148; Blossom v. Railroad Co., 3 Wall. [U. S.] 196; Curtis v. Aspinwall, 114 Mass. 187; Park Commissioners v. Carmody, 139 Ill. App. 635.) Section 825 of the charter (as amd. supra) authorizes the commissioner to sell such privileges at public auction, but it contains no provision with respect to reserving the right to reject bids. It is claimed by the city that the sale was made not only pursuant to that section, but pursuant to sections 419 and 420 of the charter, which relate to advertising for contract work exceeding $1,000 and contain a provision authorizing the rejection of bids. (See Laws of 1901, chap. 466, § 419, as amd. by Laws of 1906, chap. 598, and Laws of 1910, chap. 554; Id. § 420, as amd. by Laws of 1912, chap. 528.) Those provisions
On the disputed question of fact the court found in favor of defendant; and I think the finding is sustained by the preponderance of the evidence. On that theory the acceptance of the bid unconditionally constituted a contract for the lease, and defendant is liable under the contract as evidenced by the advertisement and its bid, and not for holding over. It is, therefore, unnecessary to decide whether the rule with respect to holding over applicable to ordinary tenancies would otherwise apply and render defendant liable on that theory, which is, at least, doubtful, for no provision of law is cited authorizing the commissioner to permit such a tenant to hold over under the terms of the former lease. If the lease was a temporary one, as' stated by counsel for the city, it is clear that it expired on May 1, 1913, and that it was the duty of the commissioner to let the privilege pursuant to an auction sale on public advertisement,’ or to get the consent of the commissioners of the sinking fund to make a lease without that, of which there is no evidence. If, as claimed by the city, the former lease was a temporary permit subject to the pleasure of the commissioner, it was at will, and on holding over after the expiration of the maximum period of one year, the rule with respect to renewal by holding over might not obtain. (See Brown v. City of New York, 78 App. Div. 361; affd., without opinion, 176 N. Y. 571.)
It follows that the judgment should be affirmed, with costs.
McLaughlin and Clarke, JJ., concurred; Ingraham, P. J., and Scott, J., dissented.
Dissenting Opinion
On April 30, 1913, the defendant was in possession of certain premises, a part of the municipal ferry terminal at the Manhattan terminal of the Staten Island ferry, under an agreement in writing dated April 26, 1912, by which the plaintiff granted to the defendant “A permit, privilege or license ” to sell newspapers, books and other articles for a period of one year from May 1, 1912, for which the defendant agreed to pay to the plaintiff $23,000 for the year.
The commissioner of docks expressly reserved the right to “ reject any or all bids if, in his judgment, he deems it for the best interests of The City of New York so to do.” At this sale the defendant bid $15,500, which was the highest bid. When the auctioneer accepted that bid as the highest bid, the defendant paid the $50 auctioneer’s fee and deposited one-quarter of the amount of the bid with the cashier of the department of docks.
There was a dispute at the trial as to whether the auctioneer announced that he accepted the bid subject to the right of the commissioner to reject it, but on this question the court found in favor of the defendant. On April thirtieth the commissioner informed the defendant that the bid of $15,500 was rejected, and before twelve o’clock of May first the commissioner of docks notified the defendant in writing that its bid at the sale of April twenty-ninth was rejected, but that defendant might hold over and remain in possession of the privileges at the same rent as the preceding year, and the deposit made by the defendant was returned. The defendant insisted, however, that it was entitled to the license for the amount of its bid, and that the commissioner could not reject the bid, and it was on this question that the right of the plaintiff to a judgment depended. By the terms of sale the highest bidder was at the time of the sale to enter into a written agreement with the city and to deposit twenty-five per cent of his bid as security for carrying into
The judgment should, I think, be reversed, and judgment directed for the plaintiff.
Scott, J., concurred.
Judgment affirmed, with costs.