52 N.Y.S. 420 | N.Y. App. Div. | 1898
Lead Opinion
From a judgment dismissing a complaint in. an action upon a bond the plaintiff appeals. The respondent claims, in the first place, that in consequence of the vagueness of the condition of the instrument sued on no enforcible obligation is made to appear. The bond was executed by Matthew B. Wynkoop and Harry 0. Hallenbeck, composing the firm of Wynkoop & Hallenbeck, and was given by them to the plaintiff in connection with a lease made by Wynkoop & Hallenbeck to the plaintiff of certain premises in the city of New York. The lease and bond bear date December 14, 1891. The lease was. “ for the term of three (3) years from the first day of May, one-thousand eight hundred and ninety-two, at the yearly rent or sum of seven thousand two hundred ($7,200) dollars and also the water; tax, with the privilege of renewal for 5 years at the same rent, whe?i a. new lease is given parties of .the first part by owner of the building.” The bond given in connection with this lease is thus conditioned: “ In case the said Wynkoop and Hallenbeck fail to give the said Polhemus Printing Company a renewal of the lease of the premises 121 Fulton street and 48 Ann street, at the same rentx (for a further term of five years), and if such renewal is given to the said John Polhemus Printing Company then this bond shall be null and void.”
It is quite apparent that something is omitted from this bond, but it was delivered as an operative instrument and the intention of the obligors is unmistakable. It is altogether plain that the condition upon which the bond was to be enforcible is the failure to give the renewal of the lease of the premises at the same rent stipulated to be paid in the lease in connection with which the bond was given, and it is stated in so many words that if the renewal is given then the bond shall be null and void. Notwithstanding the elliptical
In view of this testimony, which is wholly uncontradicted, it appears that Wynkoop & Hallenheclc deliberately placed themselves in the position of refusing to treat further with the plaintiff concerning a renewal of the lease except upon the basis of the payment of rent at $8,000 a year. Under those circumstances, and situated as the plaintiff ivas, it had a right to rely upon the attitude which Wynkoop & Hallenheclc assumed in the transaction and to endeavor to protect itself the best way it conld by negotiating directly with the owner of the building; for it is to be remembered that the declaration made to Tobin was that, as between the plaintiff and Wynkoop & Hallenheclc, the former must pay the additional rent or quit the premises. The plaintiff was entitled to construe that as a • notification on the part of Wynkoop & Hallenheclc that they would proceed no further in the effort to procure a renewal lease at a rental of $7,200 a year. It must be regarded as a distinct and unqualified notice to the plaintiff that they would not get a renewal lease from Wynkoop & Hallenheclc on the terms stipulated in the original lease. We think that the plaintiff was entitled to regard the defendants as then and there abandoning all intent to carry out
The point that the complaint was properly dismissed as to the defendant executrix, the bond being a joint one and not enforcible against the. estate of Mr. Wynkoop is not well taken. No such defense is set up, nor was the question raised by a motion to dismiss. The point is taken here for the first time, and the objection is too late even if it were otherwise tenable.
Barrett and McLaughlin, JJ., concur.
Concurrence Opinion
Taking the covenant in the lease by itself, there might be doubt whether Wynkoop & Hallenbeck’s obligation to give a renewal was not conditioned upon their obtaining one from the owners. The action, however, is not brought upon this covenant, but upon the bond. The latter contains an absolute agreement to give the renewal or pay the penalty, and in view of this fact it is somewhat difficult to see the force of the contention that the obligation is conditional. Having thus agreed absolutely to give the renewal upon the same terms as before, they necessarily took the risk of obtaining themselves such further lease as would enable them to perform. Their absolute agreement imported that they would secure the means of compliance. Either that, or that they would pay the penalty.
The most that can be claimed by the respondents is that the lease and bond should be construed together. So construed, there is no ambiguity. The bond merely dispels any doubt left by the lease, and shows that the liability assumed was absolute. Thus it either clarifies the understanding contemplated by the lease, or else it superadds a liability not imposed thereby. There is no alternative. The lease certainly does not qualify the engagement explicitly set out in the bond.
In this view the action or non-action of Wynkoop & Hallenbeck becomes immaterial. If they did not get the renewal for whatever reason, they became liable upon the bond. In fact, if their agreement was conditional, I do not see how they could be held liable merely because they admitted to the plaintiff their inability to get a renewal from the owners upon the same terms. Bad faith or laches might make them liable, although the agreement was conditional, but there is no such claim. They tried honestly to get the renewal at the same rental, and failed. As stated, however, I think that their obligation was absolute.
I should add that the action of the plaintiff in taking a lease direct from the owner was not a defense to the defendants’ failure to ful
The special defense set up in behalf of the defendant executrix was plainly insufficient. In addition to the fact that it was not pleaded, the amendment to section 758 of the Code of Civil Procedure, made in 1877 (Chap. 416, Laws of 1877), abrogates the old rule holding that the death of a joint obligor discharges his liability.
McLaughlin, J., concurred.
Dissenting Opinion
I cannot concur with Mr. Justice Patterson. The complaint alleges that on the 14th of December, 1891, the firm of Wynkoop & Hallenbeck were the lessors of certain premises in the city of New York, and on that day did execute and deliver to the plaintiff a lease of the said premises for the term of three years from the 1st day of May, 1892, with a privilege of renewal for five years from the expiration of the same, and at the same rental, and that on the same day, in consideration of the said lease, the said Wynkoop & Hallenbeck, for the purpose of securing to the plaintiff the performance of said agreement and covenant of renewal of the said lease for the said term of five years, did execute and deliver to the plaintiff their certain bond and writing, obligatory, under seal, in the sum of $2,500, wherein and whereby the said Wynkoop & Hallenbeck became bound to pay to the said plaintiff the said sum of $2,500, conditioned as follows: “ In case the said Wynkoop & Hallenbeck fail to give the said Polhemus Printing Company a renewal of the lease of the premises 121 Pulton street and 48 Ann street, at the same rentx (for a further period of five years); and if such renewal is given to the said John Polhemus Printing Company, then this bond shall be null and void,” and a copy of said
The case came on for trial, and the plaintiff introduced in evidence the lease from Wynkoop & Ilallenbeck to the plaintiff, and also the instrument given, as alleged in the complaint, for the purpose of securing to the said plaintiff the performance of the said agreement and covenant of renewal of said lease for the said term of five years. Thus, from the allegations of the complaint it appears that these two instruments were executed simultaneously and for the purpose of securing to the plaintiff the performance of the covenant of renewal. Upon this allegation of the complaint, upon which the plaintiff bases the cause of action, unless there was a breach of the covenant for a renewal of the lease, the obligation upon which the action was brought was void, and no cause of action was proved. The covenant of renewal contained in the lease is as follows: “ With the privilege of renewal for 5 years at the same rent when a new lease is given parties of the first part by owner of the building.” It was not alleged in the complaint, nor was it proved upon the trial, that any new lease was ever given by the owner of the building to the firm of Wynkoop & Hallenbeclc, but it appeared that pending the negotiations for a new lease between the owner and plaintiff lessors, the plaintiff obtained from the owner of the building a lease of the premises to itself, and thus put it out of the power of the firm of Wynkoop & Ilallenbeck to obtain such a new lease.
The fundamental question is whether there was any breach of • this obligation on behalf of the plaintiff’s lessors to give plaintiff a
The refusal of the plaintiff’s lessors to give a renewal lease did not impose upon them any liability. They were under no obligation to give such a renewal until they had themselves obtained a new lease from the owners. And a demand for such a renewal over a year before the lease expired, and a refusal then to give such renewal, was not a breach of a covenant to give a renewal when a new lease was obtained from the owner. The plaintiff’s lessors then had the right to say : “ We will not take a new lease from the owners unless yon are willing to pay an increased rent.” That is just what they did say, and plaintiff understood what was said at that time, as it at once took a lease from the owner. But in any event the dismissal as to the defendant executrix was clearly correct. The bond sued on was joint, not joint and several, and the death of one joint obligor discharged his representatives from liability to the obligee, and the survivor alone can be sued.
At the end of the case the counsel for the defendant executrix moved for a dismissal of the complaint on the ground that the bond sued on was a joint bond and not several, and that no cause of action survived the death of Wynkoop as between Wynlcoop’s estate and
Judgment reversed, new trial ordered, costs to appellant to abide event.