46 A.D. 563 | N.Y. App. Div. | 1900
Lead Opinion
This action was upon a bond for the breach of a condition to procure for the plaintiff a renewal of a lease of certain premises in> the city of New York, at a yearly rent of §7,200. The premises belonged to the Roosevelt estate, and Wynkoop & Hallenbeck were lessees thereof. The plaintiff was a sub-lessee, holding under Wynkoop & Hallenbeck for a term of three years, with a privilege of renewal for five years more at the same rent of. §7,200 when a new lease should be given to Wynkoop & Hallenbeck by the owners of the building. The defenses are, in substance: First, that the plaintiff relieved the defendant of liability on the bond or of the obligation to procure a sub-lease, because, without the consent of the defendant or of Wynkoop & Hallenbeck, and of its own volition, it negotiated with the owners of the premises and secured a new lease; second, that the plaintiff so interfered with Wynkoop & Hallenbeck in their negotiations writh the owners. of the premises as to prevent that firm, from securing a renewal of' the lease, pursuant to their contract with the plaintiff.
We do not find that the case differs in any essential feature from the condition in which it stood when it came before us on a former appeal (30 App. Div. 524), The same questions are discussed and upon substantially the same proofs. We held upon the former
It is claimed that the testimony upon the last trial puts a different phase upon these negotiations, but we do not so understand it. They were undertaken by the plaintiff to induce the defendant to get the renewal lease from the Roosevelt estate one year before the termination of the then current lease. The reason of entering upon the subject at that early date was the necessity which the plaintiff was under of making arrangements a long time in advance to move its extensive printing establishment, and Wynkoop & Hallenbeck acquiesced in the subject being then taken up and disposed of. Several months elapsed from the first request to the demand that final action be taken by the defendant." Wynkoop & Hallenbeck did undertake the negotiation with the owners and succeeded in inducing such owners to recede from a demand of $9,500 and to agree to accept a rent of $8,000, but that was $800 more than the amount at which the renewal was to be procured. Propositions were then made by the defendant to divide the difference so that each party would pay one-half. There is some little conflict of testimony with respect to what was said and done between Mr. Tobin, the representative of the plaintiff, and Mr. Hallenbeck as to the status of the negotiations on the afternoon of the day on which the plaintiff took the lease directly from the Roosevelt estate; but it was for the jury to pass upon that, and we see no reason to interfere with the verdict. The case stands, substantially, as it stood before, viz., that there was a breach, which entitled the plaintiff to recover.
' It is further claimed, however, that the defendant Hallenbeck ps not liable upon the bond because of an alteration, assumed to be material, made in it without his knowledge or assent and which he
An exception was taken by the defendant Hallenbeck to an instruction of -the court authorizing or directing the' jury to add interest to the amount of the bond. This exception was well taken. The bond was not one for the recovery of money only. We have
The judgment, therefore, must be modified by deducting therefrom the sum of $573.79, which is the amount of interest included in the verdict of the jury, and also a reduction of so much of the extra allowance granted as amounts to five per cent on that interest, and as thus modified the judgment is affirmed, without costs to either party.
Van Brunt, P. J., Rumsey and O’Brien, JJ., concurred ; Ingraham, J., dissented.
Dissenting Opinion
For the reasons stated by me upon the former appeal, I am unable to concur in the opinion of Mr. Justice Patterson on this appeal.
Judgment modified as directed in opinion and, as modified, affirmed, without costs.