Skolnick v. Orth

145 N.Y.S. 961 | N.Y. App. Term. | 1914

Lead Opinion

Page, J.

The defendant sold to the plaintiff the delicatessen store and business theretofore carried on by him at No. 131 St. Anns avenue in the borough of The Bronx and in the contract of sale agreed “ not to engag’e in the delicatessen business directly or indirectly either as principal or as agent for a period of three years beginning with the date of these presents, within a radius of five city blocks from the premises herein described, No. 131 St. Anns Avenue.” In the event of a violation of this agreement the defendant was to forfeit and pay to the plaintiff $250 as liquidated damages. Within the period limited the defendant opened and established a similar delicatessen store and business at No. 173 Willis avenue in the borough of The Bronx. The learned justice in the Municipal Court held that the agreement had been violated and gave judgment for the plaintiff for the *73sum of $250. There was no dispute as to the facts. A certified copy of the land map of that portion of the city which includes the territory in question was received in evidence. There was no extrinsic evidence offered which might throw light upon the intent of the parties. The case must therefore be decided entirely from the language of the contract as applied to the physical facts.

Where .parties to a contract have used a word that has a well defined and understood meaning it is presumed that they employed the word in the sense implied by that definition. The word “ radius ” means a straight line drawn from the center to the circumference of a circle; when applied to the limitation of space it means “ a circular limit defined by a radius of specified length.” Webster. Therefore when the parties to this contract used the words “ within a radius of * * * from the premises,” as a limitation of the territory within which the defendant was prohibited, from engaging in the specified business, they set apart a territory within a circle having all points equally distant in all directions from the premises 131 St. Anns avenue. In order, however, to arrive at the specified length of the radius, we have to determine the meaning of the words ‘ ‘ five city blocks ” as used in this contract. A “ city block ” is “ a square or portion of a city inclosed by streets whether occupied by buildings or lots; also the distance of the length of one side of such a square.” Webster. As the words are employed in this contract as a measure of the length of the radius, the latter definition applies.

The sides of the block in our city are not equal. The length of one side is three or four times greater than its adjoining side. The parties to this contract having used the words “ city block ” as a unit of meas*74urement to define length of the radius, we must resort to the map of the locality to find whether there is in either direction a uniformity in the length of the blocks. Proceeding in a northerly or southerly direction, we find that the blocks are 200 feet long separated by streets 60 feet wide, while proceeding westerly we find the length to be of the first block, 487 feet; of the second, 190 feet; of the third, 820 feet; of the fourth, 613 feet; of the fifth, 550 feet. To ascertain the unit of measurement we must adopt that block the length of which is uniform with the length of other blocks in the same direction, otherwise we can derive no standard that was in the minds of the parties when they used the word “ block ” as a unit. When thus considered it becomes evident that the word “ block ” as here usoed is synonymous with 260 feet and the length of the radius of the circle is 1300 feet.

Describing a circle having its center at 131 St. Anns avenue we find that 173 Willis avenue is outside of the prohibited territory.

Respondent’s counsel argues that the parties intended to prohibit the establishment of business within five blocks in any direction that a person would walk and 173 Willis avenue treated thus is exactly within five blocks of 131 St. Anns avenue. This, however, necessitates a person’s walking 75 feet north and then 1737 feet west and again north 420 feet. Such a construction entirely disregards the use of the word “ radius ” in the contract.

It is elementary that, where it is possible, in construing a contract, effect must be given to every word used.

The judgment is reversed, with costs to the appellant, and the complaint dismissed, with costs.

' Bijur, J., concurs.





Concurrence Opinion

Lehman, J. (concurring).

The meaning of the term,. “ within a radius of five city blocks ” seems to me quite incapable of certain interpretation. To determine the sense in which the parties have used these words, we must put ourselves, so far as possible, in their position and it seems to me that the process of exact reasoning and definition, however flawless it may be, by which the intent of the parties as expressed in these words has been arrived at, is not a process which would be employed by persons who combine a word denoting “ a circular limit defined by a radius of specified length ” with a measure of such variable length as a city block and furnishes no guide to their intention. It seems to me entirely a matter of conjecture whether these parties had in mind 260 feet or any other definite measure when they used the term “ city block ” or whether they used the term ‘ ‘ radius ” in an inexact sense and intended to prohibit the defendant from opening a new store within the limits of five squares in any direction. It does appear, however, that upon any construction of the contract, a • store within a radius of 1300' feet would be a breach of the contract, and, since any wider construction rests only ih conjecture, we should enforce the contract only in so far as it is capable of being given a definite meaning.

For this reason, I concur in the view that the judgment should be reversed, and the complaint dismissed.

Judgment reversed, with costs to appellant, and complaint dismissed, with costs.