119 Misc. 260 | N.Y. Sup. Ct. | 1922
Plaintiffs move for judgment under rule 113 of the Rules of Civil Practice. The first question presented is whether such a motion will lie upon the facts here presented. While there are denials in the pleadings most of them have disappeared as the result of the affidavits. In fact in defendant’s brief it is stated:
Defendant contends further that the motion cannot prevail because a serious question of law is involved as to whether plaintiffs are entitled to recover. Defendant argues that a motion under rule 113 can prevail only where there are no questions of law and no questions of fact. The substance of this rule came from the English Practice Act provisions and under the latter it has been held that summary judgments may be given although a question of law is presented if it is not a difficult question. See cases noted in The Annual Practice (1922), 177. But even if the question of law were difficult I see no reason why it should not be passed upon upon such a motion. The theory of our amended rules and procedure was to simplify the practice. The demurrer was eliminated. Where the answer raises an issue the plaintiff cannot have judgment on the pleadings. And if in reality there be no issue of fact, as may be shown by affidavits, but only a question of law there is no way of having that question determined prior to the trial unless it may be done by virtue of rule 113. Certainly it can be disposed of with less delay under that rule than by waiting for the case to be reached for trial. I think where there is no question of fact involved that a motion for summary judgment under rule 113 may properly be considered even though an important question of law has to be determined. And this I think is the tendency of the decisions. General Investment Co. v. Interborough Rapid Transit Co., 200 App. Div. 794.
An interesting question of law is presented. The plaintiffs are trustees of a piece of real property under a will, the trust to continue according to its terms during the lives of certain parties. The defendant sought to lease this property for a term of ten years.
Upon being advised of defendant’s position petitioners promptly reported to this court under oath that they had entered into an agreement with the defendant leasing the property subject to the court’s approval upon the terms set forth in the referee’s report. The agreement to which the report referred was the one previously made with the defendant, dated May 6, 1921, and which has been mentioned. Upon this report this court made an order dated May 20, 1921, which is in part as follows: “It is ordered and adjudged that the said report of said petitioners be and hereby is confirmed and that the said agreement dated May 6th, 1921, between the petitioners and said J. L. Kraft & Bros. Company be and the same hereby is adopted, ratified and confirmed as the agreement of the petitioners herein under the authorization of the said order of May 12th, 1921; and it is further ordered and adjudged that the said agreement be and is hereby approved, ratified and confirmed as the lease of the said property between
After the order of May 12, 1921, no paper was signed by defendant and no new agreement made between it and the plaintiffs. Defendant asserts that this court was without authority to make the order of May twentieth, claiming that the provisions of the statute had not been complied with. Its contention is that after the order of May twelfth plaintiffs and defendant should have made a new agreement agreeing to make a lease upon the stated terms, that that agreement should have been reported to the court under oath, that the court should have acted thereon and if it approved of it the parties should then have signed the formal lease.
The proceeding was brought under the provisions of the Real Property Law. Section 106 states that a trustee, such as the plaintiffs are, may execute a lease of real property “ for a term not exceeding five years without application to the court.” The section further provides that the Supreme Court may authorize such a trustee to lease the property for a term exceeding five years if satisfied that it is for the best interest of the trust estate. Section 107 prescribes the procedure to be followed if the court’s approval to a lease for a longer term than five years is sought. The provisions of this section are substantially the same as those of the sections of the Code of Civil Procedure relating to the disposition of property of infants and incompetents (§§ 2350-2356). The portions of section 107 material for this discussion read: “ After taking proof of the facts, either before the court or a referee, and hearing the parties and fully examining into the matter, the court must make a final order upon the application. In case the application is granted, the final order must authorize the real property affected by the trust or some portion thereof; to be mortgaged, sold or leased, upon such terms and conditions as the court may prescribe. * * * Before a mortgage, sale or lease can be made pursuant to the final order, the trustee must enter into an agreement therefor, subject to the approval of the court and must report the agreement to the court under oath. Upon the confirmation thereof, by order of the court he must execute as directed by the court a mortgage, deed or lease.”
These provisions do require that before a lease can be made pursuant to the final order the trustee must enter into an agreement therefor subject to the court’s approval and must report the agreement to the court under oath. But there is nothing in the language which requires such an agreement to be entered into after the final orde.' has been made. Such an agreement may be
The paper which was signed by all the parties was by its terms a lease. It contained all the terms and conditions and also the covenants usually appearing in such instruments. It was prepared with care and formality. It was signed by both plaintiffs and also by the defendant, by its vice-president, and bears the corporate seal of the latter, and is duly acknowledged. Among its other provisions there is this one: “ 12th. It is understood and agreed, that this lease is subject to the approval thereof by the Supreme Court, in a certain proceeding now pending before it in Kings County entitled ‘ In the matter of the petition of Caroline S. Coutts and Frank G. Wild as trustees under the will of George H. Coutts, deceased (Caroline S. Coutts trust) for leave to lease real property.’ ” The proceeding referred to in the lease was the proceeding we are considering. Certainly this paper was at least an agreement to make a lease and it was made subject to the approval of the court and was reported to the court under oath, all as the statute requires. The only criticism so far as this point is concerned is that it was in fact made before the final order of the court was signed. But as has been already stated, the statute does not require that it shall have been made subsequent to the entry of the order. And no reason is offered why that should be required. The sole object of the proceeding is to protect the trust estate, and it is not apparent to me how that can in any way be affected merely by the date when the agreement was made.
Whether the agreement be made before or after the final order
The court did authorize the making of the agreement to lease and it did confirm the agreement that had been made, and by order it directed the trustees to execute the lease in question. This latter it did by adopting, ratifying and confirming the agreement of lease, dated May 6, 1921, as the agreement of the petitioners under the authorization of the order of May twelfth, and by further approving, ratifying and confirming the said agreement as the lease of the premises between the said parties without further execution thereof. This was the manner in which the court directed the lease to be executed and I think it had authority so to do under the statute. It will be noted that the statute is not concerned with the lessee or his rights. Its sole concern is for the trust estate. There is no word in the statute requiring the lessee to sign an agreement to lease nor is there any provision as to when he shall sign the lease itself. He may do so before the court has made the final order or after that has been done.
There is also obiter in Matter of Central Union Trust Co. to the effect that the provisions of the Real Property Law contemplated a general application to sell or lease and not an application to do so tb a particular individual. I do not find in the section the basis for this conclusion. Furthermore, common experience in court shows such proceedings are usually undertaken only for the purpose of procuring the approval of a sale or letting already tentatively agreed upon. Very few proceedings are brought to obtain leave to sell or lease where there is no prospective buyer or lessee. And the reason for it is simple. Such a general application would involve the estate in expense which might be wasted unless a purchaser or lessee could be promptly found who would take upon the terms approved.
I think the terms of the statute have been fully complied with. I recognize that the rule is that the provisions of the statute must be met and when they have not been in material respects that the proceeding is abortive. Battell v. Torrey, 65 N. Y. 294; Stilwell v. Swarthout, 81 id. 109; Ellwood v. Northrup, 106 id. 172; Hegeman
But aside from the question already considered, there is another one which I think gives the plaintiffs the right to recover. The lease in question, but for the clause making it subject to the approval of the court, would have been valid and binding on all the parties even without the court’s approval. Although the statute (§ 106) says that the trustee may lease for a period not longer than five years that was merely declaratory of the trustee’s rights and did not grant such authority. And although the court’s approval is not obtained a lease made by trustees for a longer term than five years is valid during the term of the trust and if the trust continues during the whole term of the lease then the lease is valid for the entire period covered by it. Matter of City of New York (110th St.), 81 App. Div. 27, 35; affd., 179 N. Y. 572; Weir v. Barker, 104 App. Div. 112; Corse v. Corse, 144 N. Y. 569. Hence this lease although for a period of ten years would have been absolutely valid and binding upon the defendant if it had not by its terms been made subject to the approval of the court. The defendant by executing the lease containing that clause impliedly agreed to do whatever was reasonably necessary to aid in securing such approval. Genet v. D. & H. C. Co., 136 N. Y. 593, 608, 609; Wilson v. Mechanical Orguinette Co., 170 id. 542, 550. As was said in Wilhelm v. Wood, 151 App. Div. 42, 46, defendant was obligated “ not to interfere with the securing of this approval.” Defendant could not by its refusal to do what was reasonably necessary to secure the court’s approval prevent the obtaining of such approval and then avail itself of such lack of approval as a defense to its obligation. Moses v. Bierling, 31 N. Y. 462; Gallagher v. Nichols, 60 id. 438, 448. When the plaintiffs requested the defendant to execute an agreement to make
The plaintiffs are entitled to judgment. Hence the motion is granted.
Judgment accordingly.