By the Court.
This action was commenced in September, 1849, to restrain the defendants from proceeding by action of ejectment, or by any other process, to dispossess the plaintiffs or any of their tenants of certain lots, or of any of the buildings or improvements thereon; and from disturbing them in the possession and occupation of the same, until the expiration of the term for which renewed leases were, by the terms of certain original leases, to be granted; and that the defendants, or some of them, might be decreed specifically to perform the covenants in relation to paying for buildings, or renewing and granting new leases. The original leases referred to were made the 26th of March, 1828; and, among other things, they provided that at the expiration of the term demised (21 years), the value of the buildings and improvements made and erected in pursuance of the lease should be ascertained by two sworn appraisers, one of them to be chosen by each of the parties to the lease; or should be determined by a sworn umpire to be chosen by the appraisers, in case they could not agree. It was also provided if the party of the first part should not pay unto the party of the second part the amount of such valuation within thirty days after the valuation made and delivered in writing to the party of the first part, then the latter covenant that they will again demise the premises for another term of twenty-one years, upon such rent as shall be agreed upon between the parties, or as shall be determined by two sworn appraisers, or, if they should not agree, by an umpire. The original leases in question were made by James Gardner .•and John Hyer, as surviving executors of the last will and testament of John Gardner—two of them to Obadiah Newcomb a-s lessee, and the remaining one to Samuel Gage as lessee. Obadiah Newcomb, by deed of assignment, on the 22d of April, 1829, .became assignee of the lease to Gage. James Gardner .having died, the defendant Keteltas was substituted in his place as executor and trustee; subsequently, Hyer also died, so that Keteltas is the sole surviving executor and trustee.
It is not now disputed that the trustees had power to make these leases, although this power was controverted in this action by means of a demurrer to the complaint. This question was [211]*211decided in favor of the plaintiffs at general term, in 1855 ;* and, as I have said, is now uncontroverted.
But it is contended on behalf of the defendants that the facts stated in the complaint constitute a cause of action cognizable only in an action at law, and not in equity; that a court of equity never exercised the jurisdiction of decreeing specific performance of covenants or agreements to appoint arbitrators or appraisers; and if the plaintiffs have any remedy, it is for damages only for breach of the covenant, which can only be ascertained and awarded by a jury, unless the defendants waive their right to a trial by jury, which they have not done in this case.
It is true, indeed, as a general rule, that a court of equity will not decree specific performance of a covenant or agreement to appoint arbitrators or appraisers. Where, upon a contract for the sale of property, the price is not fixed, but is left to be determined by certain persons named in the contract, the court will not force them to a decision, and will not undertake to perform the duty intrusted to them; so that if they do not fix the price the agreement must fail, unless, under certain circumstances, there has, notwithstanding the defect, been an acquiescence under it, or such a part-performance that it would be inequitable not to enforce its execution. In such a case, the court will ascertain what is the fair value. Where, also, the agreement was to sell at a fair valuation, and no persons were appointed to make it, there being nothing to preclude the court’s interference, a court of equity has taken upon itself to determine what is a proper price, and has decreed a specific performance accordingly. In fact, where any term of a contract, in all other respects complete, is left to the determination of others, and the same is not of the essence of it, the court will take upon itself to decide that matter, and will thereupon decree a specific performance. (See Jeremy’s Equity, 442,443, and cases there cited.) I think, also, the principle is recognized, that in equity no man must set up a defence growing out of his own misconduct. Where, for instance, a person agrees to sell an estate at a price to be fixed by referees on or [212]*212before a certain day, but he refuses permission to the referees to come upon the land, and thereby prevents the valuation from being made within the prescribed time, a specific performance should be decreed. (Morse a. Merest, 6 Mad., 27.) There the vendee was not confined to his action for damages, but he obtained specific relief. In the case before us, the defendant refuses to appoint an appraiser or to renew the lease, in the mean time threatening to dispossess the plaintiff by ejectment, or to resort to some method by which he may put himself in possession of the premises without first ascertaining and paying the valuation, which the lease specifically provides. That is, he threatens, by a strict technical legal right, to deprive the plaintiffs of a possession improved and rendered valuable by the money and interest of the latter, without first complying with the promise which induced the plaintiffs to make the possession valuable. Under such circumstances, the plaintiffs were entitled to seek for the interposition of a court of equity. It would be unjust, and plainly contrary to equity, to suffer them to be dispossessed until the amount of the defendants’ liability was ascertained, and until the court could decree the reimbursement of this amount, and enjoin the defendants from resorting to an action of ejectment until the amount was paid. The court had the power, under the circumstances of this case, to make such a provision, and thus to save the plaintiffs from the risk of a personal action for damages against a defendant who may not possibly be a responsible person. The court would thus provide, as it were, a material guaranty for a party, under circumstances calling for its extraordinary interposition. It is no answer to this to say that the court, in fact, made no such provision in the present case. It is enough if the court had the power to do so; if it had, the case was properly within its cognizance, and, being once properly within its cognizance, it had a right to retain jurisdiction of the subject-matter of the controversy, and to make such'a disposition oí it as justice ■ required.
If, indeed, we were bound by the observations offered by Judgp Seldeu in Greason a. Keteltas (17 N. Y., 496), it would be our duty to reverse this j'udgment. But as those observations were merely obiter dicta, and it being unnecessary that they should be considered, or even entertained in deciding [213]*213that case, we are of course not concluded by them ; and, I am sure, if the precise point before us in the present case were discussed and examined by the Court of Appeals in Greason a. Keteltas, the court, and Judge Selden himself, would have arrived at a very different conclusion from that intimated in his opinion. The two English cases, to which he refers, are essentially different from the present case, and from Greason a. Keteltas. In Gourlay a. Duke of Somerset (19 Ves., 429), there was no previous lease, and therefore no possession or part-performance.
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By the Court.
This action was commenced in September, 1849, to restrain the defendants from proceeding by action of ejectment, or by any other process, to dispossess the plaintiffs or any of their tenants of certain lots, or of any of the buildings or improvements thereon; and from disturbing them in the possession and occupation of the same, until the expiration of the term for which renewed leases were, by the terms of certain original leases, to be granted; and that the defendants, or some of them, might be decreed specifically to perform the covenants in relation to paying for buildings, or renewing and granting new leases. The original leases referred to were made the 26th of March, 1828; and, among other things, they provided that at the expiration of the term demised (21 years), the value of the buildings and improvements made and erected in pursuance of the lease should be ascertained by two sworn appraisers, one of them to be chosen by each of the parties to the lease; or should be determined by a sworn umpire to be chosen by the appraisers, in case they could not agree. It was also provided if the party of the first part should not pay unto the party of the second part the amount of such valuation within thirty days after the valuation made and delivered in writing to the party of the first part, then the latter covenant that they will again demise the premises for another term of twenty-one years, upon such rent as shall be agreed upon between the parties, or as shall be determined by two sworn appraisers, or, if they should not agree, by an umpire. The original leases in question were made by James Gardner .•and John Hyer, as surviving executors of the last will and testament of John Gardner—two of them to Obadiah Newcomb a-s lessee, and the remaining one to Samuel Gage as lessee. Obadiah Newcomb, by deed of assignment, on the 22d of April, 1829, .became assignee of the lease to Gage. James Gardner .having died, the defendant Keteltas was substituted in his place as executor and trustee; subsequently, Hyer also died, so that Keteltas is the sole surviving executor and trustee.
It is not now disputed that the trustees had power to make these leases, although this power was controverted in this action by means of a demurrer to the complaint. This question was [211]*211decided in favor of the plaintiffs at general term, in 1855 ;* and, as I have said, is now uncontroverted.
But it is contended on behalf of the defendants that the facts stated in the complaint constitute a cause of action cognizable only in an action at law, and not in equity; that a court of equity never exercised the jurisdiction of decreeing specific performance of covenants or agreements to appoint arbitrators or appraisers; and if the plaintiffs have any remedy, it is for damages only for breach of the covenant, which can only be ascertained and awarded by a jury, unless the defendants waive their right to a trial by jury, which they have not done in this case.
It is true, indeed, as a general rule, that a court of equity will not decree specific performance of a covenant or agreement to appoint arbitrators or appraisers. Where, upon a contract for the sale of property, the price is not fixed, but is left to be determined by certain persons named in the contract, the court will not force them to a decision, and will not undertake to perform the duty intrusted to them; so that if they do not fix the price the agreement must fail, unless, under certain circumstances, there has, notwithstanding the defect, been an acquiescence under it, or such a part-performance that it would be inequitable not to enforce its execution. In such a case, the court will ascertain what is the fair value. Where, also, the agreement was to sell at a fair valuation, and no persons were appointed to make it, there being nothing to preclude the court’s interference, a court of equity has taken upon itself to determine what is a proper price, and has decreed a specific performance accordingly. In fact, where any term of a contract, in all other respects complete, is left to the determination of others, and the same is not of the essence of it, the court will take upon itself to decide that matter, and will thereupon decree a specific performance. (See Jeremy’s Equity, 442,443, and cases there cited.) I think, also, the principle is recognized, that in equity no man must set up a defence growing out of his own misconduct. Where, for instance, a person agrees to sell an estate at a price to be fixed by referees on or [212]*212before a certain day, but he refuses permission to the referees to come upon the land, and thereby prevents the valuation from being made within the prescribed time, a specific performance should be decreed. (Morse a. Merest, 6 Mad., 27.) There the vendee was not confined to his action for damages, but he obtained specific relief. In the case before us, the defendant refuses to appoint an appraiser or to renew the lease, in the mean time threatening to dispossess the plaintiff by ejectment, or to resort to some method by which he may put himself in possession of the premises without first ascertaining and paying the valuation, which the lease specifically provides. That is, he threatens, by a strict technical legal right, to deprive the plaintiffs of a possession improved and rendered valuable by the money and interest of the latter, without first complying with the promise which induced the plaintiffs to make the possession valuable. Under such circumstances, the plaintiffs were entitled to seek for the interposition of a court of equity. It would be unjust, and plainly contrary to equity, to suffer them to be dispossessed until the amount of the defendants’ liability was ascertained, and until the court could decree the reimbursement of this amount, and enjoin the defendants from resorting to an action of ejectment until the amount was paid. The court had the power, under the circumstances of this case, to make such a provision, and thus to save the plaintiffs from the risk of a personal action for damages against a defendant who may not possibly be a responsible person. The court would thus provide, as it were, a material guaranty for a party, under circumstances calling for its extraordinary interposition. It is no answer to this to say that the court, in fact, made no such provision in the present case. It is enough if the court had the power to do so; if it had, the case was properly within its cognizance, and, being once properly within its cognizance, it had a right to retain jurisdiction of the subject-matter of the controversy, and to make such'a disposition oí it as justice ■ required.
If, indeed, we were bound by the observations offered by Judgp Seldeu in Greason a. Keteltas (17 N. Y., 496), it would be our duty to reverse this j'udgment. But as those observations were merely obiter dicta, and it being unnecessary that they should be considered, or even entertained in deciding [213]*213that case, we are of course not concluded by them ; and, I am sure, if the precise point before us in the present case were discussed and examined by the Court of Appeals in Greason a. Keteltas, the court, and Judge Selden himself, would have arrived at a very different conclusion from that intimated in his opinion. The two English cases, to which he refers, are essentially different from the present case, and from Greason a. Keteltas. In Gourlay a. Duke of Somerset (19 Ves., 429), there was no previous lease, and therefore no possession or part-performance. It was a mere contract to sell land at a price to be ascertained by one Gale, a surveyor. In fact, it was not a contract on which either an action at law or in equity could be maintained; it was not a valid contract at all, which could be the subject of any remedy known to the law. It was a mere consent to arbitrate, which either party could at any time revoke before the award. The other case to which Judge Selden refers (Agar a. Macklew, 2 Sim. & Stu., 418) bore a greater resemblance to the present case. There was a provision in a lease, that, at any time during the term, if the lessees should be desirous of purchasing the estate, they should be at liberty to purchase the same for such price as should be fixed upon by two persons, indifferently to be chosen as surveyors or appraisers, &c. Sir John Leach, vice-chancellor of England, before whom the case was heard, gives no opinion, except to state in very general terms that on the authority of Gourlay a. Duke of Somerset, and other similar cases, he must dismiss the bill. But it is evident from the arguments of counsel, particularly that of Hr. Sugden, the defendant’s counsel, that the case was decided on the principle that the court had no jurisdiction to compel the first step; and it will never direct by its decree an act over the execution of which it has no control. Suppose, as the counsel observed, the court were to decree that the defendant should name an arbitrator, how could it compel the execution of that decree, or even if the arbitrator were named, how could it compel the arbitrator to act.
In short, the principle pervading the whole of these cases to which we have been referred (Blundell a. Brettagh, 17 Ves., 232, among the rest), is, that the court will never interfere in cases where it cannot enforce the acts which it is called upon to direct. It must have the subject, or the parties, within [214]*214its grasp. In the present case, it has both within its grasp. It can effectually enforce whatever the nature of the case may require, and whatever may be agreeable to equity. It could have enjoined the defendants from proceeding to dispossess the plaintiffs until they pay the latter the value of their improvements, which they, or their predecessors, solemnly stipulated they would pay; and it matters not how the value was to be ascertained, they Avere bound in equity and good conscience to pay it.
As I have already intimated, it does not affect the question of jurisdiction, that the court, in fact, gave judgment for a sum of money, instead of decreeing an injunction until the defendants should specifically perform. The court, as I have endeavored to show, has, I sincerely trust, ample poAver to afford specific remedies in cases of this nature. In this city, and probably in other parts of the State, leases of this nature are very common, and have proved greatly advantageous alike to the owners of unproductive property, and to persons of small capital Avilling to invest it in making such property productive. Such leases, also, are of great public benefit; they have contributed in a considerable degree to the progress of the city, and affording suitable accommodations for its inhabitants. It would thus be a serious public injury, if these contracts could not be effectually enforced; and it would be fruitful of widespread injustice to individuals and families, if the holders of leases of this description could be ousted on the expiration of the first term without any compensation for their investments, and with no other remedy than an action for damages, it may be, against an irresponsible person, though it is not pretended in the present case, fortunately, that the defendants are not responsible.
We consider all the other legal objections untenable, and certainly we are not disposed to disturb the findings of facts, even if there was any conflict of evidence.
Judgment should be affirmed, with costs.
Present, Sutherland, P. J., Clerke and Mullin, JJ,