Brett, Wyckoff, Potter, Hamilton, Inc. v. 15 East 47 Corp.

Appellate Division of the Supreme Court of New York

Brett, Wyckoff, Potter, Hamilton, Inc. v. 15 East 47 Corp.

35 A.D.2d 949, 316 N.Y.S.2d 676, 1970 N.Y. App. Div. LEXIS 3074

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 24, 1970

StatusPublished

This text of 35 A.D.2d 949 (Brett, Wyckoff, Potter, Hamilton, Inc. v. 15 East 47 Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brett, Wyckoff, Potter, Hamilton, Inc. v. 15 East 47 Corp., 35 A.D.2d 949, 316 N.Y.S.2d 676, 1970 N.Y. App. Div. LEXIS 3074 (N.Y. Ct. App. 1970).

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Opinion

[950]*950Concur — Markewieh, Steuer and Tilzer, JJ.; MeGivern, J. P., concurs in part and dissents in part in the following memorandum: I dissent only to the limited extent I believe that, in order to put this matter to rest, the judgment to be settled should contain the provision that the lessee undertake to install the elevator before the expiration of the present lease, to wit, October 1, 1973, in the event the lessee chooses to renew the lease, as it may do pursuant to article XXIX, and which is patently to be anticipated. Such a provision would be in accord with the practical construction given to the lease by the original parties to the lease, as per the letter of Franklin C. Parker, J., dated February 19, 1960, which the lessee agreed to. It also accords with the voluntary offer by the plaintiff to convert the elevator, as expressed in plaintiff’s brief and orally before the court. Lastly, a fair construction of article IX requires that forfeiture of the deposit of $2,500 be acceptable as satisfaction only if the lessee vacates; if the lessee renews, then the new [951]*951rental is to be determined by the value of the premises at that time, and one of the determinants of that value should be the new elevator, the obligation to install which the lessee has long recognized. Settle order on notice.

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[950]*950Concur — Markewieh, Steuer and Tilzer, JJ.; MeGivern, J. P., concurs in part and dissents in part in the following memorandum: I dissent only to the limited extent I believe that, in order to put this matter to rest, the judgment to be settled should contain the provision that the lessee undertake to install the elevator before the expiration of the present lease, to wit, October 1, 1973, in the event the lessee chooses to renew the lease, as it may do pursuant to article XXIX, and which is patently to be anticipated. Such a provision would be in accord with the practical construction given to the lease by the original parties to the lease, as per the letter of Franklin C. Parker, J., dated February 19, 1960, which the lessee agreed to. It also accords with the voluntary offer by the plaintiff to convert the elevator, as expressed in plaintiff’s brief and orally before the court. Lastly, a fair construction of article IX requires that forfeiture of the deposit of $2,500 be acceptable as satisfaction only if the lessee vacates; if the lessee renews, then the new [951]*951rental is to be determined by the value of the premises at that time, and one of the determinants of that value should be the new elevator, the obligation to install which the lessee has long recognized. Settle order on notice.

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Bluebook (online)

35 A.D.2d 949, 316 N.Y.S.2d 676, 1970 N.Y. App. Div. LEXIS 3074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brett-wyckoff-potter-hamilton-inc-v-15-east-47-corp-nyappdiv-1970.