38 N.Y. 346 | NY | 1868
Lead Opinion
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *350 By the resolution of August 16, 1853, passed by the partners then composing the Third Avenue Railroad company, it was resolved, that, in order to carry into effect the resolution of leasing from Myndert Van Schaick the thirty-three lots on Sixty-first street, it was *351 expedient that a lease for fifteen years, at $3,000, with taxes, etc., should be executed by Myndert Van Schaick to Henry Van Schaick, to be held by him for the benefit of this company, or such other company as may hereafter be formed to carry on the Third Avenue Railroad company, and that the president be authorized, on behalf of this company, to agree with Henry Van Schaick, that this company, or such other company as may hereafter be formed in its stead (as above), will and do assume the performance of all covenants contained in said lease, which are to be performed by said Henry, on condition of his agreeing to assign said lease to this company, or to such other company as shall hereafter be formed in its stead, upon request duly made to him.
The agreement of August 17, 1853, between Henry Van Schaick and the partnership, was to the effect that the lease above referred to was made for the benefit of the company, or such other company as should thereafter be formed to succeed them, in building and running a railroad through the Third avenue; that Henry Van Schaick agreed that he would at any time assign the lease to the said partnership or any company thereafter to be formed, upon request, and the company agreed that they would, and thereby did, assume the performance of all the covenants in said lease, by him agreed to be performed.
There can be no doubt that the railroad partnership was bound by these instruments, to stand in the place of Henry Van Schaick, as lessee, and to indemnify him against all liability to loss on account of the existence of the lease. He was a simple naked trustee for their benefit; he entered into the lease upon their request, and their agreement to assume all liabilities undertaken by him. Nor do I see any difficulty, upon well settled principles, in holding that Myndert Van Schaick could have maintained an action directly against the partnership to recover the amount of his rents. The lease was, in law, the lease of the partnership through Henry Van Schaick, their agent, or if not such, was expressly assumed as their lease, and an action against them given to the lessor by the terms of the instrument of August 17, 1853. *352
These agreements were made in terms not only for themselves, but for and in behalf of any incorporation that should afterward be organized to construct and operate the said Third Avenue railroad. It seems to have been assumed, from the outset, that a corporation would be formed to execute the duties then performed by the partnership; and all the rights reserved to the partnership, and all the duties imposed upon it, were to fall upon such incorporation. The corporation, when organized, took immediate possession of the premises, leased them and used them for their own purposes, and, in my judgment, impliedly agreed to perform all the covenants of the lease, and to indemnify Henry Van Schaick against any liability on the same. I concur in the judgment of the justice at the Special Term, that the facts established an assumption of the liabilities of the lease by the defendants, and that they are bound to perform its covenants. The appellants' counsel claims that the question of the implied assumption of the liability of the lease by the defendants, is a question of law and not of fact. He takes up each of the ten items from which it may be supposed that the justice trying the cause drew his conclusion of an implied assumption of the lease, and argues that they do not necessarily show an assumption, and are not inconsistent with a determination not to assume the obligations of the lease. I do not concur in such conclusion; neither is that the mode of determining the question in this court. The facts are examined and passed upon by two impartial tribunals, the Special Term and the General Term, before each of which the parties were at liberty to defend or attack any positions of fact, at their pleasure. When the case reaches this court, the facts are assumed in all respects, as adopted by the General Term, and we review the question of law arising upon such an established state of facts. Certain principal facts are proved. Certain other facts are proved, not of themselves decisive, but as forming the ground-work of inferences or conclusions. These inferences or conclusions are the final facts of the case, and we are as much bound by the deductions or conclusions of the judge or the jury in *353
regard to them, as by their finding of the principal facts. In the present case it is proved, among other things, that the defendants, having full knowledge of the terms of the lease, and of the agreements made in respect to it, with reference to the corporation to be organized, received an assignment, entered into the possession of the demised property, and used and occupied it for many years. Now, I take it, that the intent with which this was done is a question of fact rather than a question of law. It may have been with one intent, or to effect, or in pursuance of, one plan, or upon an altogether different idea. The jury or the justice, when sitting in its place, solves the question as a matter of fact, and not the court as a question of law. Having settled it as a matter of fact against the appellants, we receive it as finally settled and disposed of. It is to be considered, in my judgment, as settled by the findings of the justice at the Special Term. I cite a few of the cases where the decision is held to belong to the jury, although the facts are undisputed: (Sheridan v. Brooklyn R.R. Co.,
I am quite well satisfied, also, with the reasoning and arguments of the opinion in the court below, showing the assumption of the obligations of the lease by the defendants, and think, that, in fact, such obligations were assumed by the defendants. Upon both grounds, the judgment should be affirmed, with costs.
Concurrence Opinion
The facts in this case show beyond any question that the lease from Myndert Van Schaick, the original plaintiff, and one of the associates who constituted the association, formed to construct and operate the Third Avenue railroad, to Henry Van Schaick, another of said associates, was made at the request and for the benefit of such company, or such other as might be thereafter formed to succeed them, *354 in the business of building and running said railroad, and that the company and such other as might be formed in its place were to assume and did assume the performance of all the covenants in the lease. This arrangement was substantially carried into effect, Henry Van Schaick merely acting as trustee for the benefit of his associates and not as the lessee of the premises, or as an individual. The declaration of trust, which accompanied, or immediately followed, the lease, evidently indicates an intention that the corporation which was to be formed were to be the beneficial lessees of the premises bound by the covenants and conditions of the lease, and that they were not to be holders of the property, as mere assignees with power to divest themselves of liability, by an assignment to another party.
When the corporation was formed, it continued in possession of the property, paid rent to the lessee, accepted the lease in question, and assumed to perform its covenants and conditions, and, by means thereof, they became liable to the plaintiff for any failure to fulfill, and for any default. The action therefore was properly brought, and the judgment at the Circuit was right.
I also think that the action is maintainable within the principle of Lawrence v. Fox (
The judgment should be affirmed.
Judgment affirmed. *355
