Jacob Dold Packing Co. v. Kings County Refrigerating Co.

Putnam, J.: The learned argument for appellant ignores the weighty, indeed controlling, effect of the practical construction of the mutual rights under this contract, as made, acquiesced in and settled. during the five years of defendant’s service. The interior compartment styled a “ freezer” carried a lower temperature. But, being surrounded by refrigerated space, apparently a temperature for this small chamber of twenty degrees was not difficult to maintain. Certainly a demand for extra compensation first hinted at in 1915 ignored what had been settled and lived under by the parties during four years. There was still less basis in the claim for 2,298 cubic feet increased cubic capacity of the meat boxes. In charter-parties of vessels, the expression “thereabouts ” as to tonnage or cargo capacity covers variations of ten per cent. (Watts Y. Camors, 115 U. S. 353; Ashburner v. Balchen, 7 N. Y. 262. See, also, Robinson v. Noble’s Administrators, 8 Pet. 181. See, also, 1 Corp. Juris, title “About,” p. 335, § 3.) Being before completion, the cubic feet here given were merely an estimate of what was expected. If the actual variation turned out to be too great such discovery should be announced, before waiting five years. The privilege to renew the contract for refrigeration for five years, extending from June 1, 1915, was not made dependent on any prior notice. It was sufficiently exercised by continuing the use of defendant’s refrigeration and making payments therefor. (Kelly v. Varnes, 52 App. Div. 100.) Construing the contract against the defendant who drew it we must hold that the right to terminate on giving thirty days’ notice did not apply during such a five-year extension. Defendant’s public franchise to supply refrigeration, involving a right to lay its pipes in the public streets, carried with it duties of a semi-public nature. It was not an ordinary contract. The interests involved had become such that, acting on its own view of its rights, defendant could not summarily cut off its pipes and discontinue refrigeration, to the damage and possible destruction of plaintiff’s packing products. Therefore, it was rightfully enjoined. (Lane v. Newdigate, 10 Ves. Jr. 192; McEntee v. Kingston Water Co., 165 N. Y. 27; High Inj. [4th ed.] § 1122a; Pom. Eq. Rem. § 298.) [412] Every one of the four grounds stated in its notice of September fourteenth failed except the matter of defects in plaintiff’s insulation. The state of the conflicting evidence as to the need to overhaul floors, ceiling and other installation within the meat boxes, called for more critical investigation than could be had at the trial, so that this question was properly referred". The fact that defendant’s inspectors were in these chambers daily, having them under constant observation, justified the learned court in not holding such wear, defects in walls, or the wet flooring, sufficient reasons to forfeit this contract. The second finding of fact should be amended so as to state the particulars of defendant’s public franchise. I advise that the interlocutory judgment be affirmed, with costs. Jenks, P. J., Thomas and Stapleton, JJ., concurred; Carr, J., not voting. Interlocutory judgment affirmed, with costs.