146 N.Y. 145 | NY | 1895
This action was brought to recover the value of certain buildings and ferry fixtures erected by the plaintiff at the foot of Roosevelt street, in the city of FTew York.
It appears that on the 26th day of FTovémber, 1867, the defendant granted to the plaintiff the right to operate a ferry across the East river from the foot of Roosevelt street to South Seventh street, in the city of Brooklyn, together with a lease of certain slips and bulkheads for the term of ten years, or until FTovember first, 1877, at the annual rental of $4,900; that in and by the terms of the lease the plaintiff at its own proper cost and charges was to build and erect necessary bridges, floats and other fixtures at each landing place of the ferry and to keep the same in repair, together with the necessary docks and piers, and at the termination of the lease to surrender and yield up the said ferry, together with the bulkheads, piers, docks, floats, bridges, fixtures and improvements which may have been erected for the use of the ferry at the foot of Roosevelt street in good order and condition,subject, however, to the rights reserved to the plaintiff by the 41st section of the charter of 1857, the provisions of which are as follows: “ All persons acquiring any ferry lease or other franchise or grant under the provisions of this act shall be required to purchase at a fair appraised valuation the boats, buildings and other property of the former lessees or grantees actually necessary for the purpose of such ferry grant or franchise.”
. It further appears that one John English also held a lease from the defendants of a pier in the East river adjoining that
The first question presented for our determination is as to whether the plaintiff was entitled to a renewal of the lease at the same rental, or in default thereof -to recover pay for the buildings and ferry fixtures constructed by it .upon the premises referred to. This question involves a construction of the provision of the lease. Does the phrase “ in- the manner provided for in and by the said first-mentioned and recited indenture of lease ” relate to the provision with reference to the new lease which immediately precedes it, or does it relate back to the provision with reference to the payment for the buildings and ferry fixtures ? In answering this question we should look for the intention of the contracting parties as disclosed from the surrounding circumstances and the history of the transaction. By referring to the charter of 1857, we 'find that ferry rights were required to be let to the highest bidder for a term not to exceed ten years, and under it the only way in which the ferry company could have a renewal of its lease was by again becoming the highest bidder therefor. Nó agreement could, therefore, be entered into for a renewal at the same rental, but instead thereof we have the provisions of -the 41st section in which the ferry company was awarded the fair appraised valuation of its buildings and fixtures, which was required to be paid for by the new lessees. These provisions were omitted by the revision of the charter in 1870 (Chap. 137), but we apprehend the rights of the parties remained unchanged, for the charter of 1857 and the provisions of section 41 were distinctly referred to and made a part of the lease of 1867. We thus have the policy of the city distinctly indicated. It was to grant rights to operate a ferry together with a lease of the necessary piers for landing purposes for a limited term of years to the highest bidder, leaving it to the lessee to construct and maintain the necessary buildings and ferry fixtures, undertaking, however,
It remains to be seen whether a new lease was in effect issued to the plaintiff. This question was carefully tried and submitted to the jury, who found in favor of the defendant. Our reading of the appeal book leads us to conclude that this verdict is well sustained by the evidence. The new lease was issued to the New York Ferry Company, a corporation with a different name, but it was organized by the officers of the plaintiff evidently for its benefit and that of its stockholders and for the purpose of enabling the plaintiff to maintain this action. It consequently follows that as yet no breach of the
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed ¡