65 A.D. 487 | N.Y. App. Div. | 1901
On the 24th day of March, 1899, the plaintiff entered into a written contract with the defendant, the latter, for a consideration of $300, one-third of which was paid in hand at the time of the execution of the writing, agreeing to let to the plaintiff the boot-
We are of the opinion that under the authority of Eastman v. Mayor (152 N. Y. 468) the learned court has properly disposed of this case. In the case cited the city of New York, acting through its board of docks, leased to the plaintiff “ all and singular, the wharfage which may arise, accrue, or become due for the use and occupation in the manner and at the rates prescribed by law of all that certain public wharf property situated on the East River, in the city and county of New York,” etc. The rent reserved was to be paid quarterly in advance, and the plaintiff on or before May 1, 1897, paid the first quarter’s rent, and, in addition, in accordance with the terms of the sale, the sum of twenty-five dollars for auctioneer’s fees. The plaintiff was never put into possession of the wharf-age rights. When the lease was executed a barge of the street cleaning department (in effect, a third party) was moored at the wharf, and remained there during the entire first quarter. The plaintiff prrtested and demanded to be put into possession of the
The case at bar is not within the authority of Gardner v. Keteltas (3 Hill, 330), because the contract was not a lease of real estate; the station of the defendant was not leased to the plaintiff, nor was any particular portion of such station leased; the words of the contract are, “That the said bootblacking stand shall be placed on such premises of the party of the first part, and in such position and location as shall be determined by the General Superintendent of the party of the first part,” thus indicating the duty of the defendant to place the plaintiff in possession of the privilege leased. (See Eastman v. Mayor, supra, 473.) The plaintiff could not maintain a proceeding to eject the former lessee, because he had no lease of any particular part or portion of the premises of the defendant, and did not even know that the party in possession was holding any right which belonged to him. The defendant’s superintendent had not performed the active duty of designating any particular place, and until this was done, and until the plaintiff had been put into possession of the right for which he had contracted, he had no right to interfere with one in possession. The defendant evidently put this construction on the contract, for it made no suggestion, so far as the evidence discloses, that the plaintiff had any power to proceed in the matter, and it assumed the burden of subsequently removing the former lessee of the privilege.
The judgment and order appealed from should be affirmed, with costs.
Present — Goodrich, P. J., Bartlett, Woodward, Hirschberu and Jenks, JJ.
Judgment and order unanimously affirmed, with costs.