109 N.Y.S. 2 | N.Y. App. Div. | 1908
Lead Opinion
This proceeding was instituted by the city through its commissioner of docks to acquire the “ right and title to and possession of the wharfage rights, terms, easements, emoluments and privileges appurtenant to Pier Old Mo. 11, East River, in-the Borough of Manhattan, City of Mew York, not now owned by the City of Mew York, and all right, title and interest in and to said pier or any portion thereof not-now owned by the City of Mew York, and all wharf-. ' age rights, terms, easements, emoluments and privileges appurtenant to the easterly one-half part of all that certain bulkhead, dock or wharf property on or near' the southerly side of South street, in said borough and city, between the easterly side of Pier-old Mo. 10, and the westerly side of Pier, old Mo. 11, East River, not now owned by the City of Mew York, for the improvement of the water front of the City of Mew York, on the East River.” The title to
By letters patent from the People of the State of Hew York, duly executed by the Commissioners of the Land Office, pursuant to authority of the Legislature, on the 28th day of September, 1871, the city acquired title to the land upon which this pier and bulkhead have been constructed. The pier in question was constructed by the owners of water lots on the East river lying immediately to the south of Old Slip, pursuant to an ordinance of the common council passed on the 1st day of June, 1801, and it has been extended and rebuilt pursuant to subsequent resolutions. The appellant owners have succeeded to the rightsof the parties owning and interested in the pier bulkhead and at the time title’ vested in the city they were entitled to maintain in perpetuity a pier and bulkhead of the dimensions as they then existed and were also entitled to free and unobstructed use of the easterly side of the pier as a berth for vessels to be fastened thereto, but they did not own the bulkhead on that side of the pier. The commissioners awarded to the owners the sum of $184,329.99, but made no award to the appellant lessee. At the time title vested in the city the property was in possession of the appellant lessee, under a lease in writing from the owners, bearing date the 1st day of Hovember, 1902, which was for a term of fifteen years and three months, commencing on the 1st day. of February, 1903. The rent reserved was $11,500 per annum, commencing on the 1st day of May, 19.03. It was expressly agreed in the lease that the tenant should immediately after the execution thereof make application to the board of docks for a license or permit to erect and maintain iron or steel sheds on the pier and bulkhead, and in the' event that it should be unable to obtain the same prior to the 1st day of February, 1903, the lease should become null and void ; but that if the license or permit should be granted it should forthwith proceed with the erection of the sheds at its own cost and expense and should keep them in repair during the term and should then or on the sooner termination of' 'the lease surrender them to the lessors and they should become "the property of the owners. The lease contained further provisions material to this appeal, as follows:
“And it is hereby further covenanted and agreed by and between
“And the said parties of the. first part do covenant and agree that the said party of the second part, its successors and assigns, on paying the said rents and performing the other covenants aforesaid, shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid without molestation' or disturbance of or from the said parties of the first part, their heirs or assigns, subject, nevertheless, to the action of the Government of the United States or of the State of Mew York, of the City of Mew York or other authority created by them respectively as hereinbefore expressed.”
The lessee duly applied for the license or permit pursuant to its agreement, and apparently at the same time it and the owners applied to' the commissioner of docks and ferries for a lease of the land under water in the easterly half of the slip between piers 10 ■ and 11, extending, from the bulkhead, as it existed at that time, to the new bulkhead line adopted by the board of docks on the 3d day of Movember, 1899,. for a term of ten years from the 1st of February, 1903, with the privilege of renewal for a further term of ^ ten years, at a specified rental, and with the privilege qf erecting, and. maintaining- upon the land under water a pile platform,-with shed thereon, the same to be .erected in accordance with plans and speci
“ Permission be and hereby is granted the owners of Pier 11 East River to erect a shed on said pier in accordance with the rules and regulations in such cases made and provided, and in conformity with plans and specifications to be first submitted to and approved by the Commissioner of Docks, all the work to be done under the direction and supervision df the Engineer-in-Cliief of the Department of Docks and Ferries. It being .[understood] that this permit shall be of no force or effect unless the said owners or their authorized representatives shall file in this Department a written agreement, to be approved as to form by the Corporation Counsel that in the event that the Commissioner of Docks shall decide that said pier is needed for the improvement of the water front, that then and in such case no additional item of value shall be claimed or allowed by reason of the erection of a shed on said pier and that no additional item of value shall be claimed or allowed beyond the value of the pier if no shed had been erected thereon, in any proceedings being instituted for the. acquisition of said property either by purchase or condemnation.”
The owners and lessee, by a letter under date December 26,1902, addressed and delivered to the commissioner of docks and ferries, signed by their duly authorized "attorney, reciting the order of the commissioner granting the lease to the appellant lessee and the permit for the erection of the shed m lime verba, expressly accepted the lease and license or permit “ together with all the terms and conditions as stated therein,” and stated that they were ready and willing
On objection by coiinsel for the city the commissioners excluded evidence' with respect to the construction of the shed, the cost thereof and its value; but it appears by a fair inference that the shed was duly constructed in accordance with the terms and condir tions of the license or permit granted by the commissioner of docks, and on cross-examination a witness called by the owners testified that it was worth $30,000. In the decision which the commissioners filed with their.report,. they state that they value the pier at $168,580 as an unshedded pier, which was at the rate^of $10 per square foot, including the pier structure without the bulkhead, and that they valued the bulkhead at $15,750, which is at the rate of $300 per running foot. The commissioners determined the value of the pier upon the theory that it was an unshedded pier, and the principal contention of the owners o.n this- appeal is that this was error.
We are of opinion that the owners were not entitled to have the pier valued as a shedded pier. The decision of this question depends upon the validity of and' the construction to be placed upon the license or permit for the erection of the shed. It is contended by appellants that the commissioner of docks, .in acting upon an application for leave to erect .a shed over a pier, was without authority to permit his decision to be influenced by the question as to whether or not granting the license or permit would subject the city to the payment of a larger award when it should become necessary to acquire the pier by condemnation proceedings. It is urged that in passing upon such permits the. commissioner represents the People of the State and not the city. The learned counsel for the appellants fail to give due weight to the provisions of the charter with respect to the powers and duties of the commissioner of docks. It appears that pursuant to authority of the Legislature a map or plan for the improvement of the water front on the East river was adopted by the commissioner of docks on the. 13th day of April, 1871, and approved by the commissioners of the sinking fund on the twenty-seventh day of the same month; and that this was amended by a map or plan adopted by the board of docks on the
The appellants further claim that assuming the conditions of the license or permit to be binding upon them, the true construction is that in the. event that it should become necessary for the city to acquire'the property, it should not be obliged to pay for the shed, but that there was no intention to deprive them of the' right, in that event, to have the pier appraised as one with an outstanding irrevocable license or permit to maintain a shed thereon in perpetuity,-which would very materially increase its value. -As already indicated, it seems quite clear that the commissioner of docks intended by the clause in the permit to protect the city against such
It is also claimed by the appellants that the commissioners erred in excluding evidence with respect to the value of the shed and evidence tending to show that pending- the proceeding, but some time after it was instituted and after title vested in the city, the comptroller, assuming to act for the commissioners of the sinking fund, sold the shed. Their theory with respect to the admissibility of this' evidence is that although the city may not have been obliged to acquire the shed, it waived its right under the license or permit and elected to acquire, it, and has regarded it as acquired by this proceeding. The learned counsel for the city, in answer to this claim, says that the proceeding shows that the city only intended to acquire such title to the property as was not vested in the city, and that in view of this special agreement made between the appellants and the city by the license or permit, they were not justified in inferring that the city contemplated acquiring the shed, and that if the city has appropriated the shed to its own use, the appellants, if they did not lose their right to remove the shed, have a remedy by an appropriate action at law, and that these facts could not enlarge the jurisdiction of the commissioners to make an award for a shed in this proceeding. We agree with these views, and are of opinion that no error was committed in that regard.
The owners also claim that the award is inadequate. It is based upon conflicting evidence which fairly warrants the determination of the commissioners.
The only remaining question requiring special consideration is whether the lessee was entitled to an award for the unexpired term of the lease. The decision of this question is rendered more difficult owing to the fact that the lease was made upon condition that the tenant should erect the sheds, keep them in repair and surren
The provision of the lease with respect to awards was -inserted upon the expectation that- an irrevocable permit would be granted, and that the award would be based on the valuation of the pier as a shedded pier, and would embrace compensation for the sheds as well. In construing these provisions of the lease, therefore, this fact must be borne in mind, for it may by operation of law work a modification of the provisions, of the lease with respect to-the award, as it is impossible to make an award to the tenant on the theory contemplated, since the award, of which the tenant claims a part, was not and could not ^properly be made on -that theory. Moreover, it is evident from the award made by the commissioners, that they did not regard the rental value of the pier without a shed as- equal to the rent reserved in the lease, and this is to be fairly inferred from the decision of the commissioners. If so, it would be futile to return the report to t-liem to apportion the award between the landlords and tenant. It will be observed that it was expressly agreed' in the lease that the landlords should not be responsible in. damages to the tenant on their covenant for quiet and peaceable possession, should possession of the property be taken by public authorities pursuant to law. It is not expressly provided, however, that the lease shall thereby be terminated and yet' that may have been the intention of the parties, for of course there would be no liability for
It follows that the order should be affirmed, with costs.
Patterson, P. J., Clarke and Scott, JJ., concurred; Ingraham, J., dissented.
See Laws of 1897, chap. 378, § 822, as amd. by Laws of 1901, chap. 466, and Laws of 1903, chap. 624.— [Rep.
Amd. by Laws of 1901, chap. 466.— [Rep. ]
Dissenting Opinion
I have serious doubts whether the agreement contained in the • license or permit to shed this pier was a “ condition or limitation ”
It seems to me that this agreement related solely to the value of the structure erected on the pier and was in no sense a condition which affected the value of the pier as one to which a shedding right was, appurtenant. There was to be no additional item of value claimed or allowed by reason of the erection of the shed upon the pier. It seems to me that this agreement related to an award for the value of the shed that should have been erected upon the pier at the time the property was needed. We are not dealing with a condition or restriction contained in the license but' with an independent-agreement made between the commissioner of docks and the owner of the pier, and we must construe that agreement according to the language used and are not justified in giving it a construction which would largely decrease the value of the property which the city is now proceeding to take against the wish of the owner for public use unless the language used clearly requires such a-construction. The condition imposed upon the owner of the pier by the license having been complied with, upon his making the agreement required by the commissioner, that license then became an absolute and unrestricted license to shed the pier, and that the agreement between the pier owner and the department related to the claim of an award on account of a structure erected upon the pier and not upon the right of the owner to be paid for the pier as a pier with a right to shed appurtenant thereto.
I also think that the method adopted by the commissioners of estimate and assessment in ascertaining the value of this pier was wrong. What I think the pier owner was entitled to was the market value of the pier, what it would sell for if sold, and not a value
I also think that it was the duty of the commissioners to take evidence and determine the value of the lease to the tenant and make it an award. Under the terms of its lease it was provided' that if the demised premises should be taken in condemnation proceedings during the term of the lease that any award made therefor should be paid to the party of the first part, the owners, and the party of tlie second part, the lessees, should receive only such award as should be made in such proceeding for its interest in and under the lease and in the shed or sheds upon the premises. Whatever was tlie valué of the tenant’s interest it was entitled to submit
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testimony to the commissioners and was entitled to have an award made for that value whatever it was.
For these reasons I dissent from the affirmance of this order.
Order affirmed, with costs. Settle order on notice.