Leo Wolf v. Merritt

21 Wend. 336

• Court: New York Supreme Court
• Decided: July 15, 1839
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

The question involved in the case is, whether the quarterly payments are to be counted from the first of May, preceding the date of the lease, regarding the usual quarter days in the city of New York, and which are fixed also by statute in the absence of any regulation to the contrary; or from the beginning of the term. The court below adopted the former view according to which there was only $40, instead of $90 rent in arrear. '

The language of the lease is so obscure, that the'intent of the parties cannot very satisfactorily be ascertained. It ■is so much so, that I think it would be wrong, to reverse the judgment below, even if we might incline against the view taken of the question by the common pleas. There are cases so nearly balanced and doubtful as to which way the right lies, that different minds may fairly arrive at different conclusions, apd upon about the same force of argument. They are not cases for review, nor should they be encouraged.

My own impressions upon reading the lease, are in accordance with those of the court below; what has mainly influenced them is, that the landlord evidently had in his mind the whole yearly rent, giving that as the criterion by which to ascertain" the rent per quarter—“at the yearly rent of $300, payable quarterly f and looking at the connection here, and regarding the quarterly payments as controlled in respect to time, as it must be conceded they, are as to amount, by the term yearly rent, they are properly calculated from the first of May, that being the beginning of the rent year in the city of New York. 1 R. S. 744, § 1.

Quarterly payments cannot well be applied to a term of seven months ; it would require a division of the month to carry it out. And the difficulties are not removed by the construction insisted upon by the' counsel for the plaintiffs in error, that the rent became due at the end of each qnar-. ter year, beginning with the 1st October. The payments were to be made quarterly. The month beyond the two quarters, upon this view, could not be brought very consistently within this phraseology: at least, I think, the language more naturally refers the quarter to the usual quarter days for the payment of rent in the city. Then the rent for October falls within the quarter ending the first day of November. The parties themselves seem, originally, so to have understood the agreement, and I think it best supported by the language used.

Though the court below erred in not deciding this as a pure question of law; the error is immaterial, as the jury came to a right conclusion.

Judgment affirmed.