Hicksville & Cold Spring Branch Railroad v. Long Island Railroad

By the Court, Leonard, J. The Hicksville Company sue to recover six months’ rent of their branch railroad, under .a written lease with the Long Island Company, and the last mentioned company set up, as a counter-claim, an extinguishment of the right to recover rent arising from a tender of the purchase price of the branch road, under an option or privilege contained in the lease, before the rent accrued, and also demand a specific performance of the' agreement to convey, and that the Hicksville Co. may be compelled to perfect their title and extinguish all incumbrances. The action of the Long Island Co. against the Hicksville Company, is to the same effect as the counter-claim above mentioned. • Judgment was rendered, dismissing the complaint in this action, and in the action of the Hicksville Company, the Long Island Company was adjudged to pay the rent claimed, and the plaintiff was adjudged to convey their railroad, free of incumbrances created .by themselves, and upon the delivery of. the deed the Long Island Railroad Co. were adjudged to pay the purchase price named in the lease, with interest from the 15th of January, 1864, up to which time the Hicks-ville Company recovered rent in the said action. The merits of the controversy were tried in the action of the Hicksville Co. There was no necessity for the cross-action by the Long Island Co., inasmuch as the claim and counter-claim arose out of the same transaction or contract, and it is well settled as law, that a counter-claim, or defense of an equitable nature may be interposed, although the claim [361] or demand mentioned in the complaint is purely of a common law nature, or for the recovery of money only. This rule appears to be in conformity with the provisions of the Code in respect to equitable defenses. This is the only question involved by the appeal in the action of the Long Island Co. The Long Island Co. required the Hicksville Co. when the tender was made, to convey to them a perfect title, or to convey with covenant of warranty as to the title. The latter Company were willing to accept the money tendered, but the Long Island Co. insisted upon these terms, and carried their money away. The lease was of the branch railroad, the land upon which the same is built, embracing the titles, &c. and generally the property as it now exists (at the time of the lease,) the cost of which is $45,304, &c. The right to purchase was of the demised premises, upon payment of the said cost thereof, and all rent computed to the time of purchase.; and upon payment, the said demised premises were to be conveyed, free from incumbrance. The Long Island Co. clearly required more than their contract permitted, when they made their tender. The tender was, therefore, no bar to the claim for rent, and did not prevent its accruing in future. The question of specific performance brings into consideration other facts and circumstances. The relief granted is substantially as if the Hicksville Company were permitted the option, and had made a right tender of a deed to the Long Island Co., and had sued for payment of the consideration. There has been no tender by the Hicksville Co. of such a conveyance as the Long Island Co. were entitled to. They offered a deed which has been found by the judge who tried the case to be not in conformity with the privilege granted. The learned judge has prepared a deed, and adjudged that the Hicksville Co. shall execute and deliver such an one to the Long Island Co. This deed contains a covenant against [362] their own acts by which incumbrances have been or may be created. Simultaneously with the delivery of this deed, the Long Island Co. are adjudged to pay the Hicksville Co. the principal sum of $45,304, with interest, &c. The right of the Long Island Co. to receive the deed, is conditioned upon payment. And from the time of such payment, rent and interest are to cease. I think it is entirely clear that neither party was in a condition to demand a specific performance in respect to a conveyance of the premises. The Hicksville Company did not demand, but on the contrary resisted, a specific performance in the manner claimed by the Long Island Co. The Hicks-ville Co. could make no such claim, and had no right of action whatever, to recover the price for a conveyance of the premises demised or leased to the Long Island Company, The Long Island Co. sought to compel the Hicksville- Co. to complete their title, at an additional expense, by the tender of the cost only of the demised premises, as. they existed at the time of the lease. The option does not contemplate that the Long Island Co. shall have a conveyance, except upon payment of cost; and the cost, as the road existed when the lease was executed, was agreed upon at $45,304. They had the privilege to acquire so much as the Hicksville Co. then had, at that price. If more should be acquired, the cost would then be more, and the Long Island Co. would have the additional cost to bear. That company made no tender for any additional cost; nor could they, for the amount was not known. There is no covenant on the part of the Hicksville Co, for the acquisition of additional titles. If there were such a covenant, it would not be within the province of a court of equity to decree its performance, and without such a covenant there is not a shadow of claim to compel the acquisition of other titles. There has never been any indication of an option by the [363] Long Island Co. to avail themselves of the right to obtain, such a deed as the special term has adjudged. Under the tender, such as it was, that company could not have compelled the execution of such a deed as the court have thought proper to award; literally to crowd upon that company a conveyance which is not regarded as any relief. I can find nothing in the facts which will permit the decree compelling the Long Island Co. to pay $45,304, as upon an option or privilege of which they have never sought to avail themselves. They have never put themselves in condition to be subjected to such terms. A claim made for relief, or for a deed, upon terms to which a party is not entitled, does not subject him compulsorily to accept a deed upon some other terms. In such a case, the relief demanded should be denied, simply, with or withont costs, according to regulated discretion in equity cases. [New York General Term, April 1, 1867. The court below should have rendered judgment for the rent due, with interest and costs of the action, in the action brought by the Hicksville Co. and have denied the relief demanded by the answer, and should have also dismissed the complaint- of the Long Island Company with costs. The present decree has more the appearance of an award by an arbitrator, to whom the parties had referred their matters in dispute, than the judgment of a court regulated by law and precedent. I think the decree should be modified in conformity with my opinion, as above expressed, without costs in the first case, and with costs against him in the other. Leonard, J. C, Smith and Ingraham, Justices.]