253 A.D. 332 | N.Y. App. Div. | 1938
The complaint alleges, in substance, that defendant was the owner of the certain parcel of land constituting the northerly half of the block bounded by Thirty-eighth and Thirty-ninth streets, Broadway and Seventh avenue, sometimes known as block 814; that between December 8, 1936,- and February 18, 1937, the plaintiff, through Isidor Friedman, its duly authorized agent, and the defendant duly entered into an agreement to lease, whereby it was mutually agreed that defendant, and Isidor Friedman, as tenant, would execute a lease of the premises for a term of twenty-two years, commencing as of twelve o’clock noon, January 1, 1937, and ending December 31, 1958, at certain specified annual net rentals, subject to such changes, if any, in the terms thereof as thereafter and prior to the execution of the lease might be mutually agreed upon between the parties, and that the form of the lease was to be subject to the approval of the defendant’s attorneys.
It further alleges that at various times between December 8, 1936, and on or about February 19, 1937, “ it was duly mutually agreed by and between the plaintiff and the defendant that the terms of and lessee under the lease to be executed pursuant to said agreement be modified so that the terms thereof and lessee thereunder be as provided in the form of lease, a copy of which is hereunto annexed, marked Exhibit A, and is hereby made part hereof.” (This alleged lease described the property exactly as described in the complaint, and set forth many covenants, terms and conditions. It was never executed.)
The complaint then goes on to allege that at various times between December 8, 1936, and February 17, 1937, the said form of lease was duly approved as to form by the defendant’s attorneys.
The complaint further states that the lease provided, among other things, that the plaintiff, upon obtaining possession of the premises, would promptly commence and complete, at its expense, the demolition of the old buildings, and complete the erection of a modem fireproof building, not less than twenty-four stories, at a cost of not less than $2,500,000; that simultaneously with the delivery of the lease the plaintiff would procure at its expense, and deliver to defendant, a completion bond or bonds satisfactory to defendant, in an amount at least equal "to $2,500,000.
It is then alleged that plaintiff offered to the defendant the Maryland Casualty Company, the George A. Fuller -Company and United States Realty and Improvement Company, and the Turner Construction Co., Inc., as guarantors upon the completion bond, and that defendant refused each offer, “ without any proper, valid or sufficient reason therefor * * * and. in violation of the terms of the agreement to lease and, upon information and
Plaintiff alleges due performance on its part, its readiness, willingness and ability to perform, and the prevention of performance by defendant.
The prayer is for specific performance, etc.
The complaint contains many other allegations not essential to the question now before us.
Defendant moved under rule 107 to dismiss the complaint, on the ground that the agreement alleged in the complaint is unenforcible under the Statute of Frauds.
The moving papers show that defendant was incorporated as a charitable and benevolent corporation by special act of the Legislature (Laws of 1935, chap. 947); that its powers are vested in, and its affairs are managed and conducted by, a board of trustees; that George L. Shearer has been president since the organization meeting on June 5, 1935; that no express powers are conferred upon the president by the act or by the by-laws; that there are five principal residuary beneficiaries of the Wendel Foundation; that by resolution of June 5,1935, the legal affairs of the foundation were to be attended to by a committee of counsel, consisting of representatives from the five different law firms who separately represent the beneficiaries; that no action by defendant requiring the approval of counsel has ever been taken, except by the unanimous approval of the committee of counsel; and that Mr. Shearer’s firm represented one of the beneficiaries.
Negotiations with respect to the leasing of the premises were commenced in December, 1935, and plaintiff’s assignee submitted several propositions for consideration by the defendant. The culmination of these negotiations was that the board of trustees on December 8, 1936, adopted a resolution reading as follows:
“ Resolved, to enter into a lease with Mr. I. Friedman of the North Half of block 814 for the term of 22 years with three renewals of 21 years each from the 1st day of January, 1937, at the following rentals: The first year thé tenant is to pay all carrying charges only; the second year a net rental of $60,000; the third to eleventh year, inclusive, a net rental of $115,000 per year; the twelfth year a net rental of $125,000, and the thirteenth to twenty-second year, inclusive, a net rental of $130,000 per year. The lessee is to agree to erect a building on the property at a cost of approximately $2,500,000, and to furnish a bond for the completion of that building; the lease to, contain such provisions mot to ho in such form as*335 counsel may approve and that the President be authorised to execute such lease when agreed upon; the amount of brokerage to be paid to Childs & Humphries, Brokers, at the regular rates to be agreed upon before the execution of the lease; this lease to be delivered simultaneously with lease next hereinafter authorized of the Southeast portion of the said Block.”
On motion duly made and seconded, it was “ Resolved to enter into a lease with Mr. I. Friedman of the part of Block 814 South of the center line and East of the Millinery Center Building for the term of 23 years from January 1, 1937, with three renewals of 21 years each, at the following rentals: The first three years the tenant is to pay all carrying charges only; next ten years a rental of $55,000 per year minimum; next ten years a rental of $65,000 per year minimum; property to be appraised between July 1,1939, and January 1,1940, and if the appraisal is $1,400,000 or more, the tenant to pay 5% of appraisal for twenty years straight; tenant to put up $30,000 cash security until he supplies a bond for the completion of a mercantile building of about twenty-four stories; tenant to pay to the landlord one-sixth of the taxes monthly for the first half of each year; the rental during the three renewals to be fixed on a 5% basis; the lease to contain such provisions and to be in such form as counsel may approve, and that the President be authorized to execute such lease when agreed upon; this lease to be conditioned upon the execution of a lease of the North half of Block 814 simultaneously with this lease.” (Italics mine.)
Plaintiff makes no claim that the resolution of December 8, 1936, is, in and of itself, sufficient to satisfy the Statute of Frauds. Plaintiff merely claims that that resolution, a writing signed by the defendant, is a part of the connected chain of writings which satisfy the statute, and that “ it appears from examination of all the writings that the signed writing was signed with reference to the unsigned writings ” which preceded it. (Restatement of the Law of Contracts, §§ 208, 214.)
The prior negotiations and the writings prepared in connection therewith may be summarized as follows: Plaintiff claims that two attorneys, a Mr. Buek and a Mr. Matthews, were designated to draft the lease by the committee of counsel for the defendant corporation, and that it was the practice that when legal matters came before the committee of counsel for consideration, to ask one or more of the counsel to do the work on behalf of all. It also contends that, pursuant to the instructions of the committee of counsel, a draft of the lease was prepared by counsel acting for the defendant corporation and was submitted to counsel for the plaintiff some time in May, 1936, and a conference was held
The meeting of December 8, 1936, followed, at which the resolution set forth above was adopted. It is plain, however, that there could be no written memorandum of any completed contract up to that date, for there was as yet no meeting of the minds of the parties on many essential points. We will proceed to consider the subsequent events and the writings prepared in connection therewith.
A special meeting of defendant’s trustees was called for December 29, 1936, “ to consider a proposal for a modification of the terms of leases of property in Block 814, New York City, which leases were approved at a meeting of the Trustees held on December 8, 1936. The terms of the proposed modification are set forth in a letter, a copy of which is hereto attached.” A meeting of the board of trustees was thereafter held on December 29, 1936, and the proposed modifications were not accepted.
Mr. Buek wrote to plaintiff’s attorney about January 6, 1937, suggesting a conference with him and Mr. Matthews. The conference was held at plaintiff’s attorney’s office on January 14, 1937. Various changes were discussed on that day, an adjournment taken to the following day, and the conference was finally continued on the morning of January 18, 1937.
A comparison of the draft of lease of November 14, 1936, and that of February 17, 1937, shows many substantial changes were made.
Do all these documents read together meet the requirements of the Statute of Frauds?
By the resolution of December 8, 1936, defendant’s president was to execute and lease only upon the occurrence of all of the following events: (1) Agreement upon the lease; (2) approval by counsel of the provisions contained in the lease and of its form; (3) agreement with Childs & Humphries, brokers, upon the regular rates of commission; and (4) simultaneous delivery of a lease, also authorized, of the southeast portion.
Plaintiff fails to produce sufficient written memoranda to show agreement upon the lease, approval by counsel of the provisions contained therein and of its form, any agreement with Childs & Humphries and a delivery of a lease also authorized of the southeast portion.
Nothing can be added to or read into an agreement, unless there be ambiguity which gives play for judicial interpretation. (Jermyn v. Searing, 225 N. Y. 525, 541.) The language of the resolution of December 8, 1936, is perfectly plain, so what plaintiff apparently is seeldng to do is to add to that resolution. The draft of the lease attached to the complaint does not interpret the resolution; it contradicts it.
Section 259 of the Beal Property Law reads as follows: “ A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the lessor or grantor, or by his lawful agent thereunto authorized by writing.”
If a material element of a contemplated contract is left for future negotiations, there is no contract enforcible under the above statute. The memorandum, to satisfy the statute, must contain the terms of a concluded contract. It is not enough that the agreement is a note or memorandum in writing where any part of the intended contract, i. e., the contract which the paper sued on purports to memorialize, is left to future negotiations. (Bernat v. West Seventy-Third Street Corp., 230 App. Div. 18, 20.)
Even if the resolution of December 8, 1936, could be said to be a sufficient memorandum to evidence a contract, it is a different contract from that alleged in the complaint. The resolution authorized the making of two leases. The making of each is expressly conditioned upon the making of the other. One is a lease of the northerly half of the block, to which the complaint refers; the other is a lease of the southeasterly quarter of the block. Plaintiff fails to show a resolution authorizing a lease of one portion without the other.
The contract to make a lease, alleged in the complaint, is a contract to lease the northerly half of the block only. The complaint does not allege that plaintiff’s assignor or plaintiff has entered into or offered to enter into a lease of the southeasterly quarter of the block. The complaint says nothing about the other lease.
For the foregoing reasons the court below was in error in denying defendant’s motion to dismiss the complaint. The contract on which the action is founded is unenforcible under the provisions of the Statute of Frauds.
Martin, P. J., Glennon, Untermyer and Dore, JJ., concur.
Order, so far as appealed from, unanimously reversed, with twenty dollars costs and disbursements, and the motion granted.