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(219 N.Y.S.)

The judgment appealed from should be reversed, with costs to the appellant, and judgment directed to be entered in favor of defendant dismissing the complaint, with costs.

Order filed. All concur.

(128 Misc. Rep. 216)

COOPERSTONE v. BROOKLYN EDISON CO., Inc.

(Supreme Court, Kings County. January 4, 1926.)

Eminent domain ~275(2)—Property owner held not entitled to compel removal of electric transformer erected by lighting company in sidewalk opposite his premises (Transportation Corporations Law, § 61, subd. 2).

Under Transportation Corporations Law, § 61, subd. 2, property owner, opposite whose premises lighting corporation having franchise to supply electricity throughout neighborhood, erected transformer on posts in sidewalk near curb for use in street lighting and private consumption, cannot compel removal of transformer; and result is same, though no street lights are now being furnished by means of transformer, in absence of evidence of damages to owner.

Action by Joseph Cooperstone, an abutting property owner, having no title to bed of street, against the Brooklyn Edison Company, Inc., for an injunction to compel removal of electric transformer and transformer pedestal erected by defendant public service corporation, having a franchise for and supplying electricity in and throughout the borough of Brooklyn, within and near the curb line of Lakeland place, opposite plaintiff's premises. Judgment for defendant.

Siegel & Corn, of New York City (Jacob H. Corn, of New York City, of counsel, and Isaac Siegel, of New York City, on the brief), for plaintiff.

Samuel F. Moran and John D. Monroe, both of New York City, for defendant.

CROPSEY, J. Plaintiff seeks to compel the removal of a transformer placed by defendant upon posts in the sidewalk opposite plaintiff's property. The posts are near the curb and about 15 feet from the plaintiff's building, and the tops of them are about fourteen feet above the ground. It is necessary for defendant to use such instruments in furnishing electric current for street lighting and for private consumption. When the main feed wires are underground, as they are in the locality in question, the transformers usually are also there; but at this

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location the tide or subsurface water interferes with their operation when placed underground, and they can be operated properly and successfully only when elevated, as they have been placed in this instance.

Plaintiff urges that they could have been placed at some other placein front of some other owner's property-but that cannot be the determining fact. If defendant was using these transformers to furnish street lights in the vicinity of them, there could not have been any complaint. The plaintiff does not own the fee of the street-that is in the city—and as defendant has all the official authorization required by law for the erection of the transformers, they could be maintained unquestionably, if used for a street purpose. Transportation Corporations Law, § 61, subd. 2 (now Transportation Corporations Law, § 11, subd. 3); Palmer v. Larchmont Electric Co., 158 N. Y. 231, 52 N. E. 1092, 43 L. R. A. 672. See, also, Oelsner v. Nassau Light & Power Co., 134 App. Div. 281, 118 N. Y. S. 960. While it is conceded no street lights are now being furnished by means of these transformers, the defendant has the contract to light the streets in the vicinity with others, and the proof shows it contemplates making such use of these converters before long. Plaintiff could be denied relief for that reason. But there is no basis for a recovery by plaintiff, even if street lights are never to be furnished through these transformers. The proof does not warrant a finding that plaintiff has suffered any damage by their erection. True, they do not add anything of beauty to the view; but they are so placed as not to obstruct in any real sense access to the property or interfere with the light and air. A witness claiming to be qualified to speak as an expert did say there had been a large depreciation in rental value because of the transformers, but the court cannot credit his testimony, even though it be undisputed.

As plaintiff is not damaged, and is only an abutting owner, he has no cause of action. Halleran v. Bell Telephone Co., 64 App. Div. 41, 71 N. Y. S. 685, affirmed 177 N. Y. 533, 69 N. E. 1124; Post v. Hudson - River Telephone Co., 76 App. Div. 621, 78 N. Y. S. 576. There must be damage suffered to give an abutting owner the right to a judgment. This is clearly shown by the cases. So it has been held that such an owner cannot complain of the use of the street by surface or steam railroads in the absence of proof of damage (People v. Kerr, 27 N. Y. 188; Peck v. Schenectady R. Co., 170 N. Y. 298, 63 N. E. 357; Fobes v. Rome, W. & O. R. Co., 121 N. Y. 505, 24 N. E. 919, 8 L. R. A. 453), but may of the erection of an elevated road, or a subway or a tramway used in building the latter, where damage is shown. Story v. N. Y. El. R. Co., 90 N. Y. 122, 43 Am. Rep. 146; Matter of City of N. Y. (In re New St. in City of New York) 215 N. Y. 109, 109 N. E. 104, L. R. A. 1916B, 1225; Bradley v. Degnon Contracting Co., 224 N. Y. 60, 120 N. E. 89; Sinsheimer v. Underpinning & Foundation Co., 178 App. Div. 495, 165 N. Y. S. 645.

(219 N.Y.S.)

The defendant is entitled to judgment, with costs. Defendant has submitted its findings. If plaintiff wishes to propose any, they may be submitted before January 9, 1926, when the requests of both sides will be passed upon.

(128 Misc. Rep. 468)

SCHWARTZ et al. v. SCHULTZ.

(Supreme Court, Appellate Term, First Department. December 16, 1926.) Landlord and tenant 184 (2)-Tenants abandoning premises and terminating lease on refusal of permit by fire department held entitled to recover deposit.

Tenants, who abandoned premises and terminated lease on refusal of necessary permit by fire department, held entitled, in absence of counterclaim, to recover deposit securing performance of their covenants, notwithstanding they undertook to procure permit.

Levy, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by Ignatz Schwartz and another against Joseph Schultz. Judgment for defendant, and plaintiffs appeal. Reversed, and judgment directed for plaintiffs.

Argued November term, 1926, before BIJUR, O'MALLEY, and LEVY, JJ.

Sydney D. Robins, of New York City, for appellants.

Shapiro & Witte, of New York City (Samuel Witte, of New York City, of counsel), for respondent.

PER CURIAM. That the tenants undertook to procure the necessary permit from the fire department does not bar a recovery. It is undisputed that such permit could not be obtained, and the plaintiffs, having abandoned possession and terminated the lease, have a right, there being no counterclaim presented, to recover the moneys deposited with the landlord to secure performance of their covenants (Raner v. Goldberg, 215 App. Div. 355, 213 N. Y. S. 345).

Judgment reversed, with $30 costs, and judgment directed for plaintiffs for the relief demanded in the summons, with interest and costs.

LEVY, J. (dissenting). Although the point is not raised by the appellant, I consider that Shedlinsky v. Budweiser Brewing Co., 163 N. Y. 437, 57 N. E. 620, is controlling upon us, and that the judgment below was therefore proper.

Accordingly I dissent, and vote to affirm.

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(218 App. Div. 502)

BEVIN et al. v. HENRY STEERS SAND & GRAVEL CO., Inc., et al. (Actions 1-3.)

(Supreme Court, Appellate Division, Second Department. December 3,

1926.)

1. Contracts ~147(3)-Parties' intention, gathered from instrument, governs its construction.

Intention of parties, gathered from whole instrument,, governs construction thereof.

2. Contracts

170(1)-Practical construction of parties cannot be resort

ed to, where instrument is unambiguous.

Where instrument is clear and unambiguous, court in construing it cannot refer to parties' practical construction thereof, or to other courts' constructions of other contracts.

3. Mines and minerals 70(1)-Gravel pit lease held lease of land with privilege of removal of material, and rent was payable after abandonment, notwithstanding rent paid exceeded total rent for term.

Ten-year lease at minimum rent of $6,000 per year, payable regardless of whether any sand or gravel was removed, with royalty per cubic yard removed, and giving lessee right to cancel lease in certain circumstances on three months' written notice, held lease of land with privilege of removing material, and not contract for sale of material in place, and tenant was liable for minimum rental after abandonment of property before expiration of term, notwithstanding total rent paid exceeded total minimum rentals for 10 years.

4. Mines and minerals 66-Tenant held not entitled to cancel gravel pit lease by abandonment of premises because of exhaustion of sand and gravel.

Under ten-year lease, giving tenant right to remove sand and gravel at minimum annual rent plus royalty, with right to cancel lease on 30 days' written notice in case of discovery of certain extensive clay beds, held, that tenant could not cancel lease by merely abandoning premises, because sand and gravel had become totally exhausted.

Kapper and Jaycox, JJ., dissenting.

Appeal from Supreme Court, Suffolk County.

Three separate actions by Sydney Bevin and another against the Henry Steers Sand & Gravel Company, Inc., and Henry Steers, Inc. From a judgment dismissing the complaint on a nonsuit granted at the close of plaintiffs' case in chief, plaintiffs appeal. Judgment reversed on the law. Plaintiffs' motions for judgment on the pleadings in action No. 1 and in the first cause of action in No. 2 granted; remaining causes of action to be severed, and new trial granted as to issues arising thereon. Argued before KELLY, P. J., and JAYCOX, MANNING, YOUNG, and KAPPER, JJ.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(219 N.Y.S.)

Sidney W, Davidson, of New York City (Heber Smith and Leslie D. Dawson, both of New York City, on the brief), for appellants.

Charles L. Woody, of New York City, for respondent Henry Steers, Inc.

KELLY, P. J. The learned trial justice said in granting the nonsuit at the end of plaintiffs' case:

"I am very clear that there is no cause of action here, and the motion should be granted."

From my point of view, the action is to recover installments of rent alleged to be due under a written lease of certain beach property on Eaton's Neck, in Suffolk county. There is no dispute about the making of the lease, or about defendants' entry on the property. The lease was for two certain tracts of land, shown on a map attached to the instrument. It was dated December 18, 1916. The property was leased to the defendants "for the purposes of a sand and gravel business only." The term was for ten years from June 1, 1917, “at a minimum rental of six thousand dollars per year, based upon the gravel and sand removed therefrom as follows, viz.: Ten cents per cubic yard for all gravel and sand removed, the tenant to remove and pay for, or pay for without removal, sand and gravel, so that the minimum rental or royalty shall be fifteen hundred dollars for each three months of each current year, the rental or royalty for each three months to be paid on the 20th day of the succeeding month at the place or residence of said Leander A. Bevin, at Northport aforesaid, or such other place within fifty miles of New York City as he shall in writing designate; the intention being that said tenant shall pay at least a minimum rental of six thousand dollars during each year, by paying at least fifteen hundred dollars of the rental for each three months of each current year, subject to cancellation hereof as hereinafter provided. Operations under this contract to begin June 1, 1917."

I am free to say that I can discover no ambiguity in the terms of the instrument so far. It is further provided:

"Said parties further covenant and agree that, in the event that extended bed or beds of clay be found upon the leased property within fifty feet of the natural surface of the ground, upon which bed or beds there is not twelve feet or more of sand and gravel, or sand or gravel, with the result that a deposit of sand or gravel of at least twelve feet in thickness is not available for the party of the second part, that in that event the party of the second part, its successors and assigns, shall be privileged to cancel this lease upon three months' notice in writing, and upon such completed cancellation the future obligations of both parties hereto shall forthwith terminate: Provided, however, that if there be upon the property leased an available deposit, over twelve feet in thickness of sand and gravel, or sand or gravel, the lessee shall be obligated to take the same and shall not be permitted to cancel this lease."

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