Poillon v. . Gerry

Werner, J. The only exception presented by this record is that taken by the plaintiff to the court’s dismissal of the complaint, and the single question we ■ are called upon to decide is whether, upon the facts established, the plaintiff was entitled to have the case submitted to the jury. .This question is to be determined .in the light of the facts and inferences most favorable to the plaintiff. (McDonald v. Met. St. Ry. Co., 167 N. Y. 68.) The plaintiff claims to be entitled to the • award of $2,500, which was made to the defendant in the proceedings above referred to. This claim has been prosecuted in the form of an action as for money had and received. This form of action is authorized by section 993 of the Hew York Consolidation Act, and has been approved in Spears v. Mayor, etc., of N. Y. (87 N. Y. 359). It has also been held that it is no defense to such an action that the award was excessive or inequitable. (De Peyster v. Mali, 92 N. Y. 262.) The lease to the plaintiff gave him the right at the expiration of his term to remove the buildings for which the award was made. This clause in the lease is consonant with and supplemented by the plaintiff’s testimony that he was the owner of the buildings. If these were the only facts in the case, it would be too obvious for discussion that the plaintiff was entitled to remove the buildings when his lease expired, *18 and it would follow as a necessary conelnsion tlrat lie is entitled to the award for them which has been paid to the defendant. There is, however, the other quoted clause of the lease under which it was stipulated that the defendant should be entitled to all amounts paid or awarded for the talcing of the premises by the public authorities, the rent reserved having been fixed in contemplation of such taking, and that plaintiff, in case of such taking, would make no claim for damages against the defendant. There is in evidence also the admission of the plaintiff that at the time he accepted his lease there was pinned to a corner of it a memorandum to the effect that he was to he allowed one hundred dollars for repairs. At first glance, the clause of the lease which provides that the defendant shall be entitled to any payment or award for the taking of the premises, seems to be dominant and exclusive. But when both of the quoted clauses are read together, as they must be in the effort to ascertain the intent of the parties, it seems clear that each may be given effect without destroying the other. Under the first clause the defendant, as owner of the land, is to receive any award for the taking thereof and the plaintiff, as tenant, waives all right to damages for interference with or abridgment of his possession or term. In other words, the owner is to take the award just as he would if there were no lease, and the tenant waives his right to any part of it, as well as any claim for damages against the owner. Under the second clause the tenant, if he has complied with the conditions of the lease may, at the expiration of his term, remove the buildings which he claims to own. Tims construed these clauses of the lease are consistent with each other. Unless they are thus construed, one or the other must be held to be meaningless. Under the well-established rule that contracts must, if possible, be so construed as to give effect to all their parts, we think neither of these provisions is repugnant to the other. This view is strengthened by the fact that the first clause contains a provision for a proportionate reduction of the rent in case the tenant should be actually evicted during his term. This circumstance strongly *19 indicates that it was the intention of the. parties to make the owner the recipient of all the land damages, including such as might otherwise have been awarded to the tenant for any abbreviation of his term ; and to limit the tenant’s right tp the removal of his buildings, and to a ratable reduction of rent in case of eviction. Counsel for the defendant also contends that if the plaintiff ever had any right to the buildings, it was lost by his failure to remove them promptly at the expiration of his lease. The facts do not sustain this claim. It appears that the plaintiff remained in possession of the demised premises from the 1st to the 18th of May, 189G, with the consent of the defendant. As there was no new lease and the rent was the same as it had been during the previous year, it was a holding over on the terms expressed in the lease, and these included plaintiff’s right to remove the buildings. (Lewis v. Ocean Nav. & Pier Co., 125 N. Y. 341.) On May 18th, 189G, the report of the commissioners of estimate and appraisal was confirmed and title to the lands then vested in the city. The latter, having paid $2,500.00 for the buildings, became the owner thereof, and the defendant, having received the award for the buildings, held the same for the use and benefit of the plaintiff. Upon this state of facts we think it was error to dismiss the complaint. Whether the plaintiff’s rights upon another trial will depend wholly upon the construction which we have given the clauses of the lease above referred to, or whether they may rest in part upon extraneous facts, some of which have been .noted, we do not now decide. If the plaintiff was not entitled to the direction of a verdict in his favor, he had at least the right to have the case submitted to the jury. The judgment of the court below should be reversed and a new trial granted, with costs to abide the event.