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Statement of case.

by the Great Western Railway Co. for the carriage of the goods to their ultimate destination, and that the contracting carrier was solely liable for the loss of the goods in transit, although they were lost while in course of transportation by the defendant who received them from the first carrier at the terminus of its road for transportation to the place to which they were directed. This case would not be followed with us, but each carrier would be held responsible for a loss or damage to the goods while in his custody, and the only question would be as to the extent of his liability, and whether he was entitled to the benefit of any stipulations in the contract made with the first carrier.

The defendant, upon the case made and facts found by the judge at the trial, was subject to all the common-law liabili. ties of carriers, and the stipulations of the contract with the Atlantic and G. W. R. Co. did not extend to the transportation of the goods by the defendant. It is not necessary to consider at this time the liability of the parties, in case it should appear that the oil was being carried at a reduced rate of freight.

The judgment must be reversed and a new trial granted.
All concur, except PECKHAM and RAPALLO, JJ., not voting.
Judgment reversed.

49 499 120 636

TAE WESTERN TRANSPORTATION COMPANY OF THE CITY OF

BUFFALO, Respondent, v. ABRAHAM L. LANSING et al.,
Exrs., etc., Appellants.

Where a lease for a term of years contains a clause giving the lessee the

privilege of keeping and occupying the premises for such further time after the expiration of said term as he shall choose or elect, yielding and paying therefor the same rent, and where before the expiration of the specified term the lessor dies, the lessee is not entitled to a renewal or

extension of the lease, The most that is created by the clause is a tenancy from year to year after

the termination of the term, determinable at the pleasure of either the lessee or owner of the reversion, upon giving the requisite notice, (Argued April 2, 1872; decided May 28, 1872.)

Statement of case.

APPEAL from order of the General Term of the Supreme Court in the third judicial district, reversing a judgment in favor of defendants entered upon the report of a referee.

This action was brought to compel specific performance of a covenant in a lease, which plaintiff claimed entitled him to a renewal of the lease, and to restrain defendant from interfering with plaintiff's possession. The lease was of certain premises in the town of Watervliet, Albany county, executed by Levinus A. Lansing, lessor, and Erastus S. Prosser, lessee, dated August 30th, 1853. It was for the term of fifteen years, at the yearly rent of thirty dollars, to be paid in yearly payments on the first of September in each year, the lessee to pay all taxes, “ with privilege of keeping and occupying said lots for such further time, after the expiration of said term, as said party of the second part shall choose or elect, yielding and paying therefor the same rent and all taxes as aforesaid.” The lessee covenanted to pay the rent as specified, and at the expiration of the term, or of such further time as he should elect as aforesaid to hold the same, to quit and surrender the premises, etc.

The lease contained a covenant of the lessor, that the lessee “on paying the said yearly rent, and performing the covenants aforesaid, shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term afore said, and any extension thereof, as before provided for.”

The lessor died prior to the expiration of the fifteen years. Defendants succeeded to his interests. Plaintiff is assignee of the lessee. On the 28th August, 1868, plaintiff served on defendants a demand in writing for a renewal of the lease for a term of fifteen years, accompanying the demand with a lease executed in duplicate by plaintiff. Defendants declined to execute the same, and upon expiration of the term specified demanded possession.

The referee found that plaintiff was not entitled to a renewal or extension of the lease, and that the holding of the plaintiff since the expiration of the term was wrongful; that defendants were entitled to possession, with damages

Opinion of the Court, per FOLGER, J.

for the withholding, and were entitled to judgment for costs, etc.

Judgment was entered accordingly.

W. A. Beach for the appellants. The lease contains no covenants of renewal entitling plaintiff to claim a new demise. (Kling v. Dress, 5 Robt., 521; House v. Burr, 24 Barb., 525; Cretian v. Doney, 1 N. Y., 419.) The provision for extension is void under the statute of frauds. (Wright v. Weeks, 25 N. Y., 153; Stocker v. Partridge, 2 Robt., 193, 202, 204.) It is void for uncertainty. (Abeel v. Radcliffe, 13 John., 297; Taylor's Landlord and Tenant, $ 75, etc.; Buckmaster v. Thompson, 36 N. Y., 558.) It is void as tending to create a perpetuity. (Carr v. Ellison, 20 Wend., *178.) This case is not one of equitable jurisdiction. (M. Ins. Co. v. City of N. Y., 3 Keyes, 182; Supp v. Kensing, 5 Robt., 609.)

John H. Reynolds for the respondent. If the covenant be for renewal it runs with the land and binds defendant Wager. (Piggott v. Mason, 1 Paige, 412; 4 Kent Com., 109.) The lessee has the right to retain possession till the owner of the reversion grants a new lease. (6 Wend., 596; 2 Duer., 444.) The true remedy for the tenant is to compel specific performance. (1 Paige, 412.) The election of the Jessee properly signified extends the lease over the further time chosen. (1 Com., 419; House v. Burr, 24 Barb., 525; Ranlet v. Cook, 44 N. H., 512.) The performance of the contract will be enforced in a court of equity. (Piggott v. Mason, 1 Paige, 412; 9 Vesey, 332; id., 325.) The clause is capable of being made certain by the exercise of the lessee's right to fix the time of extension and is valid. (3 Seld., 472; Hyde v. Skinner, Peere. Wms., 196; Taylor's L. & T., Bridges v. Hitchcock, 1 Bro. P. C., 522.)

158;

FOLGER, J. This is an action on the equity side of the court to restrain the defendants from interfering with or dis

Opinion of the Court, per FOLGER, J.

turbing the possession of the plaintiff of certain premises in West Troy; and asking that the court adjudge the specific performance of an alleged covenant, to execute a second lease thereof, so as to carry into effect that certain covenant, claimed to be contained in a lease heretofore executed.

The lease was executed on or about the 30th of August, 1853, between Levinus A. Lansing, from whom the defendants derive their title, and Erastus S. Prosser, who is the assignor of the plaintiff. Lansing was the lessor and Prosser was the lessee. The lease began on the 1st of September, 1853, and, being for a term of fifteen years, it ended on the 1st of September, 1868. The rent was thirty dollars yearly, payable on the 1st of September in each and every year during the term. The lessee was also to pay all taxes that might be assessed on the premises. The lease contained this further clause: "With privilege of keeping and occupying said lots for such further time, after the expiration of said term, as said party of the second part (the lessee) shall choose or elect, yielding and paying therefor the same rent and all taxes as aforesaid.” The lessee expressly covenanted to pay to the lessor the yearly rent as in the lease specified, and upon the days therein before specified of fifteen years, or at the expiration of such further time as the lessee may choose or elect, as aforesaid, to hold the same. And the lessor did covenant that the lessee, on paying the yearly rent and performing his covenants, should hold the premises for the term aforesaid, and for any extension thereof, as before provided for. The lessor died before the 30th of December, 1867; and on or about that day his devisee conveyed the premises to the defendant Wager, subject to all the covenants and conditions of the lease, so far as obligatory, with the right reserved to Wager to dispute the obligation of them. The plaintiff, on the 28th of August, 1868, demanded of Wager a lease for a term of fifteen years longer.

If this provision, giving the lessee the privilege of keeping and occupying the premises demised for such further time as he shall choose or elect, connected with the other clauses of

Opinion of the Court, per FOLGER, J.

the lease relating thereto, be treated as a covenant running with the land; it is the most which in that respect can be claimed for it by the plaintiff.

If it were simply a covenant to renew, it would imply a renewal for the same term and for the same rent. (Tracy v. Albany Exch. Co., 7 N. Y., 474.) But it is not such; nor is there any room left for implication. The same rent for the period of further occupation, as was reserved for the specified term of fifteen years, is expressly provided for. It is expressly provided that the taxes shall be paid by the lessee through the period of further occupation. Nor can it be implied that the same term is provided for; as it is expressed that the further occupation shall continue as long as the lessee shall choose or elect. Nor can it be implied that the rent is to be paid on the same annually recurring day of payment, as was the rent for the specified term of fifteen years. The special clause, providing for the further occupation, is silent as to the day of payment of the rent. In the covenant of the lessee to pay the rent however, he binds himself to pay the yearly rent in the lease specified, upon the days therein specified of fifteen years, or at the expiration of such further time as the lessee might choose or elect to hold the premises. The use of the disjunctive “op" might be held, on a literal construction of solely the covenant of the lessee, to give to him the alternative of paying rent in installments on the 1st of September in each year, or in gross on the expiration of the further term for which he might choose to occupy. But this could not have been the intention of the parties. It is not to be supposed that the lessor could have intended to wait for his rent until the term of fifteen years had run out, and also for such further time of occupancy as the lessee should choose to take. And besides, in the former part of the lease the days for the payment of the rent for the specified term are fixed; being the 1st of September in each year during the same. So that the clause in the lessee's covenant for payment of rent, fixing the time therefor at the expiration of the further time of occupancy chosen by him, must

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