128 N.Y.S. 898 | N.Y. App. Div. | 1911
Appeal from judgment for defendant. The controversy relates to the rights of the parties, as tenant and landlord respectively, under a lease which by its terms expired oh November 1, 1907. At its inception this controversy involved only a small sum of money, insignificant in amount compared to the value of the property involved. Neither party, however, was willing to give way to the other, and as a result the controversy has how attained larger proportions. It arose over the landlord’s covenant to renew the lease of the land, or to pay for the buildings erected thereon, which covenant was contained in a lease dated October 29, 1886, made between Hamilton Fish as landlord and Eliza A. Clark, executrix, as tenant, plaintiff being the successor in interest of said Clark, and defendant being the successor in title oi said. Fish. The lease provided that the landlord, at the expiration of the term of twenty-one years, should have the option either to renew the lease for a further term of twenty-one years at such annual rent as might be agreed upon, or to pay to the tenant the value of the building erected thereon. In the event of a failure to agree upon the rent for the new term each party was to appoint a disinterested appraiser to value the lot and also to separately value the building without reference to the value of the lot, and five per cent upon such valuation of the lot was to be the annual rent of the lot for the new term if the landlord elected to renew the. lease. Provision was made for the appointment of a third appraiser in case those originally appointed should fail to agree. The landlord covenanted on his part, in default of giving such renewal, to pay to the tenant the appraised value of the building. It was further stipulated that in case the parties failed to agree so that it became necessary to appoint appraisers they should be so appointed at least one month before the expiration of the term, which in this case meant October 1, 1907. ' There was nothing in the lease to prevent the parties, if they saw fit, from agreeing upon the terms of a new lease or appointing appraisers any time before October 1, 1907. The plaintiff having sublet the premises and being anxious to know what disposition was to be made of the property frequently requested the landlord, commencing in the
It follows that the judgment appealed from must be reversed and a new trial granted, without costs m this court to either, party.
Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.
Judgment reversed and new trial ordered, without costs.