New York Central Rail Road v. Saratoga & Schenectady Rail Road

39 Barb. 289, 1861 N.Y. App. Div. LEXIS 238

• Court: New York Supreme Court
• Decided: September 2, 1861
• Status: Published

Opinion

By the Court,

Hogeboom, J.

Three prominent objections are made to the plaintiff’s recovery : 1. That Justice Gould was not the officer or functionary designated by the contract for the appointment of appraisers, and therefore had not power to make the appointment. 2. That the notice of dissatisfaction with the existing rent, and claim for increased rent, was out of time and premature. 3. That the "plaintiff is not, for the purposes of this notice and claim of rent, the legitimate successor of the Utica and Schenectady Rail Road Company.

I. The 'officer or tribunal to whom, in case of disagreement as to the rent, application was to be made for the appointment of appraisers, was “the chancellor of the state of Hew York for the time being.” I am of opinion that the parties thereby intended the court of chancery, and not the mere personal incumbent of the office of chancellor, and for these reasons :

(1.) The lease was to run during the corporate existence of the defendants, which might much exceed in duration both the official career and the life of the then chancellor.

(2.) It is highly probable that during the long period when these services might be called into requisition, the parties preferred to rely upon the presumed impartiality of a judicial officer, rather than upon any individual designated by name, however respectable and disinterested he might be, at the time of the contract.

(3.) We may reasonably presume that the parties employed the term “the chancellor of the state of New York” in the sense then well understood among professional men, and to a large extent outside of the profession, as synonymous with the “ court of chancery.”

(4.) The steps provided in the contract to be taken for obtaining competent and indifferent appraisers^ apparently contemplate formal legal proceedings in a court of justice, by application in writing, after previous notice in writing, upon hearing both parties; and the subsequent proceedings before the appraisers closely resemble those usually had in the progress of a litigated action.

If the court of chancery was intended by the parties, and not the mere person temporarily filling the office of chancellor, then, the supreme court being by law and the constitution the lawful successor and recipient of the powers and duties formerly vested in the court of chancery, must also be deemed to be such, according to the provisions of the contract. This construction best satisfies the contract, accomplishes the objects intended, and preserves a perpetual and competent tribunal to answer its requirements.

If so, then Justice G-ould, sitting as a court, was for the time being, the chancellor, the supreme court, the tribunal intended by the parties. As the vice chancellors could exercise the functions of the chancellor dnd of the court of chancery, so could one justice of the supreme court in his appropriate place and jurisdiction, represent the court. As the whole thirty-two judges were not essential to constitute the supreme court, so three were not necessary to discharge the duties appropriate (like those required in the present instance,) to the special term.

It is very true that the supreme court had no general jurisdiction over the subject matter of the order, and that none such can he conferred, even by the consent of the parties. But if the court, or its members, do not refuse to exercise this power of appointment, I do not see that the parties have any right to object. It is a mere mode of selecting impartial appraisers, solemnly agreed upon by them, under seal, and effectuates their wishes and intentions. It is not establishing a new. head of equity jurisdiction, by which all citizens are bound, and which it is compulsory upon the court to assume, but an appointment of arbitrators by the parties themselves, through the court as their agents and appointees, in a manner to answer the ends of justice.

I am of opinion, therefore, that there" is no necessity of resorting otherwise to the equitable powers of the court to enforce this contract, so that justice shall not be denied.

2. I think the notice of dissatisfaction and claim of increased rent was regular, and conformable to the provisions of the contract. The claim was made at the expiration of one of the three years terms. The notice was given in the latter part of June, to apply to a term which was to commence at the expiration of that month. The notice was, I think, seasonable and proper. It apprised the defendant of the wish of the plaintiffs before the new term was to commence, and enabled the defendant to make timely provision for the consequences. , Though given before the expiration of the term, it was not to take effect till the expiration of the term. As it was never revoked, and remained unanswered till the last of July, it must be deemed operative at the close of the term on the last of J une, and must therefore be deemed good from that period. It was practically a notice at that time. It conformed, substantially, to the intention of the parties, both in substance and time. Ho objection was made to it as irregular or premature, but objection was made to the increase of the rent, and a desire for negotiation expressed. I think a defect in the time or modevof service of the notice was an irregularity that might be waived, and that this was a waiver. The defendants reposed upon objections to the substance of the claim, and not to its mode of presentation.

[Albany General Term, September 2, 1861.

Wright, Gould and Hogeboom, Justices.]

3. For the purposes of the notice and claim of rent, I think the plaintiff was the proper representative of the Utica and Schenectady Bail Boad Company. By the act of consolidation the interest and rights of property of the latter company became vested in the former. (Laws of 1853, ch. 76.)

This, also, is the fair construction of the contract. If the interest of the Utica road passed by assignment, it was obviously intended—at any rate is obviously just—that the assignee and beneficial owner should have the benefit of this provision of the lease. The rent was a compensation for the use of the land and the superstructure upon it, and the right to it passed, I think, as a necessary appurtenance to the ownership of such land and superstructure ; and so long as the defendant obtained under the assignee of the Utica road the benefit and use of the road, it is obviously just that such assignee should have the benefit of the rent and of the stipulation for an increased amount. The plaintiff was the real party in interest, and it was not only proper, but necessary, that the action should be brought in its name.

I think the plaintiff’s claim was well founded ; that the action was well tri§d ; and that the judgment should be affirmed.