Viany v. Ferran, 54 Barb. 529

Viany v. Ferran

54 Barb. 529 | N.Y. Sup. Ct. | 1868

Cardozo, J.

—I think the learned counsel for the defendant misconstrues the provisions of the lease as to the renewal. The lease provides that if the lessee, having per*112formed Ms covenants, gives notice in writing on or before Feb. 1, 1868, binding Mmself to take and accept a further term of five years from May 1, 1868, the lessor will grant a new lease for such further period. It then provides for the fixing of the rent by arbitration, and instructs the arbitrators as to the “principle” by which they are to govern themselves, but it gives no option to the lessee to accept or reject the lease after the arbitrators have acted. It simply very inartificially prescribes a rule of action for the arbitrators. The lessee’s obligation to take the new lease becomes perfect as soon as he gives the notice binding himself to take and accept another, lease for the further term. The moment that notice is given the obligation of the plaintiff to grant, and of the defendant to take, the new lease, becomes perfect and mutual. Whether the allegation in the complaint, that the plaintiff gave the notice that he would take the. further term, be denied or not, is not material, because both parties are estopped on that point by having proceeded to appoint arbitrators. That appointment being an act only to be done after notice that the new lease was to be taken, neither party, after making the appointment, can be heard to assert that the notice had not been given. The case then is briefly thus: The parties have entered into a covenant for a renewal of the lease • which, by the notice served by the plaintiff, became mutual and obligatory on both of them, and there is nothing to be done except to ascertain the rent, and that was to be fixed by arbitration. The arbitration was commenced, but fell through by reason of Judge Daly being unable to devote sufficient time to complete it, and the parties failing to agree upon any other umpire.

In Kelso v. Kelly (1 Daly, 419), Judge Daly, reviewing the authorities, says, “ Where a valid contract has been entered into for the renewal of a lease, by which it is provided that the amount of rent to be paid shall be settled by arbitration, and the party who is to give the lease refuses to appoint an arbitrator, a court of equity will compel specific performance, and order a reference to ascertain *113wliat the amount of the rent should "be” (see also Wells v. De Leyer, 1 Daly, 45).

This I understand to "be the settled law of this State, and I regard the principle as applicable to and decisive of the question in this case.

The motion to dissolve the injunction must therefore be denied. The costs may abide the event of the action.