Hudson Nav. Co. v. Joyce

HOUGH, Circuit Judge (after stating the facts as above). [1] This action is not on any lease, but solely upon an agreement between the Hudson Company 1 and Joyce, whereby, for good consideration, the latter was to receive certain money annually “in the event of a renewal of said lease by the city of New York with [Hudson Company] for a further term of ten years.” The sole question presented is whether such renewal ever took place. That there was a renewal we do not doubt. The meaning of that word has been considered in Carter v. Brooklyn Life Ins. Co., 110 N. Y. at page 22, 17 N. E. 396, and held to signify the revival or rehabilitation of an expiring subject; ' a description most appropriate in this case, where the leasehold estate' finally vested in the Central Railroad was exactly that created by the lease of 1904, with the reddendum clause changed as contemplated in the original contract. The “renewal” contemplated was something that was to grow out of the original lease, and be governed by its terms, and that is exactly what was finally executed and delivered to the Central Railroad. Equally, if not more, persuasive is the fact that in the terms of settlement of the action promoted by the railroad company all parties, thereto called the lease that should be and was [105] delivered a “renewal” of the original; and they must be held to have accurately described their own act. [2] There remains, however, the objection that such renewal was never rñade with or to, the Hudson Company, and therefore a condition precedent vital to Joyce’s claim was never fulfilled. As between the city and the Hudson Company the one thing needful to produce a renewal was the timely service of notice and demand. This was given; and that it required a mandatory injunction to produce it is immaterial, for it is elementary that what was done under the valid and unreversed order of a competent court must be held to' have been rightly done, "and to be such an act as any well-disposed and honest citizen would be glad to do. The rights of all parties to the old lease, including the Central Railroad, were fixed when the Hudson Company served the notice of July 22, 1914. Doyle v. Hamilton Fish Corp., 144 App. Div. 135, 128 N. Y. Supp. 898; Mattlage v. McGuire, 59 Misc. Rep. 28, 111 N. Y. Supp. 1083; Underhill, L. & T. p. 1365. But it is said that Joyce was no party to that instrument, and his claim was not advanced by this res inter alios acta. It is true that Joyce’s rights depend, not on any estate carved out of the leasehold for him, but on a separate agreement to pay him for procuring the lease; his remuneration to be increased if such estate continued in being beyond the term originally conveyed by tire city of New York. There is nothing in the contract with Joyce to the effect that he shall be paid for the renewal term (which grew out of his efforts as truly as out of the original lease) only if the Hudson Company wanted it or enjoyed it. His compensation depends on whether there ever was a renewal of lease “by the city of New York with the [Hudson Company].” It is plain that there was such renewal in legal contemplation the moment the Hudson Company exercised its option, i. e., served the notice of July 22, 1914, for nothing further was necessary to secure the formal paper called a renewal lease. The relations of all parties would thereafter have been the same had no further paper writings ever been executed. Under the contract in suit, Joyce need not care whether the Central Railroad ever got a lease or not, nor whether the Hudson Company assigned anything; it is enough for him that on July 22, 1914,' the defendant lawfully assumed the position of the city’s tenant for another ten years; that of itself was a “renewal with” the Hudson Company, because thefi and there the relation of landlord and tenant for the new term sprang into existence. The subsequent apparatus of papers merely made a record of an existing legal relation. As Joyce’s claim became ripe, by the exercise (under lawful and righteous compulsion) of the Hudson Company’s option, the judgment below was right, and is affirmed, with costs. Footnotes [1] The agreement was with the predecessor of this corporation, but for convenience the defendant is named as having been concerned in the matter from the beginning. [2] «tesFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexee