42 N.Y.S. 404 | N.Y. App. Div. | 1896
The action was brought to procure the valuation of certain lots, and of the buildings thereon, in the city of New York. The facts, so far as we need to refer to them here, are as follows: March 2, 1874, Mary S. Van Beuren and Caroline Hoppock entered Into a written agreement under seal, wherein Mrs. Van Beuren, party of the first part, leased to Mrs. Hoppock, party of the second part, the lot in question, for 21 years from March 1, 1874, at the yearly rent of $1,000, payable half-yearly on the 1st days of March and September. The agreement contained the following provisions, among others:
“At the expiration of the term here granted, the party of the first part, her heirs or assigns, shall have the full liberty and choice, either to grant a renewal of this lease for the further term of twenty-one years thence ensuing, at such annual rent, payable half-yearly (but not less than the rent of the last preceding term), as shall be agreed upon by the said parties, their heirs, executors, administrators, or assigns, respectively * * *. And, in the event of their not agreeing upon such rent, each party shall choose a disinterested person to ascertain the same, which persons so chosen shall themselves, respectively, be owners in fee simple of one or more lots of land in the neighborhood of the one here demised, and shall, in making their award or determination in the said premises, under oath, appraise and value the said lot of land hereby demised, at its full and fair worth or price at private sale, considering the same as an unincumbered vacant lot, and five per cent, on the amount of their said appraisement or valuation shall be the annual rent of the said lot of land for such further term; and in case the arbitrators should differ in the amount of their appraisement or valuation, as aforesaid, they shall then choose an umpire, qualified as aforesaid, whose decision under oath shall fix and determine the same, * * **406 or to pay unto the said party of the second part, her executors, administrators, or assigns, the value of the front building now thereon, or its substitute, of similar character, if then standing, which value shall be ascertained by three disinterested persons, to be chosen as aforesaid. * * * It is expressly understood that the party of the first part, her heirs or assigns, shall not be required to make her or their election, in any case provided by this lease, until both the valuations herein provided shall have been made, unless the valuation be prevented by the fault of the lessor, her heirs or assigns, or her or their arbitrators.”
Caroline Hoppock went into possession and occupied the lot, under this agreement, until her death, November 23, 1890. She left a will under which her interest in the lot and buildings and the agreement in question vested in the defendants, either directly or by other wills or conveyances. Mary S. Van Beuren died August 9, 1894, and her interest in the lot and buildings and agreement vested in the plaintiffs. Before the term of the lease or agreement expired, and as a result of negotiation between the.parties, there was a failure to agree upon the value of th.e lot or buildings, and in February, 1895, each party selected an arbitrator under the agreement, the plaintiffs selecting Mr. Jackson, and the defendants Mr. Whitridge. March 4, 1895, two days after the expiration of the term, the arbitrators proceeded to act, and made efforts to agree with each other, and finally, and in July, 1895, it was determined that they could not agree. The plaintiffs’ arbitrator appraised the lot at $100,000, and the building at $15,000. The defendants’ arbitrator appraised the lot at $80,000, and- the building at $40,000. Thereupon the plaintiffs’ arbitrator, under date of July 24, 1895, wrote the defendants’ arbitrator, sending a list of names of persons proposed by him, from which to select the umpire, "and a blank appointment, asking him to select one of the names, insert it in the blank, sign, and return for the signature of plaintiffs’ arbitrator that day, so the appointment could be made before he left for Upper Saranac Lake, to be gone several weeks. No answer was made to this letter until the next year, June, 189G. Early in August, 1895, defendants’ arbitrator met with an accident, and became seriously ill, and unable to attend to any business. In October, 1895, as soon as he was able to be about, he went abroad, and did not return until the middle of May, 1896. In the meantime, and September 25, 1895, plaintiffs’ attorneys wrote to defendants’ attorneys, calling attention to the fact that the letter of July 24, 1895, by plaintiffs’ to defendants’ arbitrator, had not been answered," and notifying him this was a delay in the proceedings on the part of defendants’ arbitrator, and asking if he meant to refuse to proceed in the arbitration. To this letter defendants’ attorney replied September 27, 1895, informing plaintiffs’ attorney of the accident to, and' sickness of, defendants’ arbitrator, and saying that he did not refuse to proceed, but was most anxious to go on with the arbitration, and would inquire as to the condition of defendants’ arbitrator, and ascertain how soon it would be possible to proceed. October 2, 1895, the plaintiffs’ attorneys, by letter, asked defendants’ attorney to submit names for an umpire. October 3, 1895, defendants’ attorney wrote plaintiffs’ attorney that the agreement permitted the-
It seems to us this conclusion must have resulted from an incorrect interpretation of the agreement itself. The court evidently assumed that the valuation of the building was to be ascertained only by the joint appraisal of the three persons, as arbitrators, instead of by the two as arbitrators if they agreed, and, if they failed to agree, then by the umpire selected by them, such umpire acting alone in determining such value. In this we think there was error. It is very clear that the value of the lot was to be determined by the two arbitrators alone, if they could agree, and, if they failed to agree as to the value, they were to appoint an umpire; and, this being done, ihe duty of the arbitrators ended, and the matter of value rested in the determination of the umpire alone. Lyon v. Blossom, 4 Duer, 318-325, and cases therein cited; Brown v. Lyddy, 11 Hun, 451; Wood, Arb. & Awards (Ed. 1872) 841.
It is equally clear to us that precisely the same power and duty was imposed upon the three persons, and each of them, as to the value of the building. The language of the agreement was, “which value shall be ascertained by three disinterested persons, to be chosen as aforesaid.” Under this language, two of the persons would be chosen by the parties themselves, and the third could only be chosen by the two already selected by the parties, and only in the event that the first two themselves disagreed. There can be no possible reason for saying that, when the two persons should be chosen by thé parties themselves, these two should not be regarded as arbitrators, and when the third was chosen, after a disagreement between the two arbitrators, he should not be regarded -as an umpire. The two provisions should be read together, and the latter should be construed in view of the clear meaning of the former. Nothing in the language indicates an intention to require a different rule of action by the three persons in the case of the valuation of the building than that of the lot. The three persons were evidently expected to act as to the buildings as they would act as to the lot; and" in this action the valuation of the building was to be ascertained by them in the same manner as the value of the lot. This was a common-law arbitration, and not one under the Code of Civil Procedure; and the only reasonable construction to be given to the agreement, it seems to us, is the one we have suggested. It was not provided that the three persons should all be arbitrators, and they could not well be such. If chosen as provided in the case of the lot, two must be arbitrators, and one an umpire. And, if such was to be their designation, the only reasonable conclusion is that
This construction being given to the agreement, there can be no ■question as to the right of the plaintiffs to maintain this action. When the arbitrators failed to agree as to the value of the lot and building in July, 1895, the only duty left for them to perform was to choose an umpire. It was entirely unnecessary for them to be present, or to act with the umpire in the performance of his duties under the agreement. The defendants’ arbitrator practically refused to act in the performance of his duty to agree with the plaintiffs’ arbitrator in selecting a person as umpire. He should' have acted at once, when it became a settled fact that the arbitrators could not agree, and that was Julj 24,1895. He was called upon to act at that time by the plaintiffs’ arbitrator, who submitted to him a list of names. It is said that he did consider these names, and prepared, an answer to be sent to plaintiffs’ arbitrator, and was still considering the matter when he met with a severe accident, and that a serious illness resulted, which rendered it impossible for him to transact any business. This was the early part of August, 1895. He remained in Hew York until October, 1895, and then was able to be about, and went abroad for his health. Before he went abroad, however, and in September, 1895, the plaintiffs’ counsel called the attention of defendants’ counsel to the failure of defendants’ arbitrator
It has frequently been held that where a party refuses to appoint an arbitrator, or the arbitrator refuses to act, the court, in the exercise of its equitable jurisdiction, will itself afford relief to the injured' party by ascertaining and fixing the value of the property itself (Viany v. Ferran, 5 Abb. Prac. [N. S.] 110; Kelso v. Kelly, 1 Daly, 419; Graham v. James, 7 Rob. [N. Y.] 468; Dunnell v. Keteltas, 16 Abb. Prac. 205); and that a court of equity will, by an appropriate remedy, secure to either party to a lease the benefit of a clause providing for an arbitration as to the value of the property, though they cannot decree specific performance of an agreement to arbitrate (Johnson v. Conger, 14 Abb. Prac. 195; Smith v. Rector, etc., 107 N. Y. 610, 14 N. E. 825). Within the well-settled rules laid down in these cases, and in view of the action of the defendants with reference to this arbitration, the court was called upon to afford the plaintiffs relief in this action, and should have done so. It did permit the parties on both sides to give evidence as to the value of the lot and building, but finally refused to fix and determine such value. In this, we think, the court erred. Having acted as they did, the de
For the reasons herein suggested, the judgment should be reversed, and a judgment entered appointing a suitable person to appraise and value the lot and building, etc., as prayed in the complaint, with costs of the action and of the appeal. All concur.