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(219 N.Y.S.)

ment is clear and unambiguous, we are not obliged to refer to "practical construction" by the parties, or the abstruse reasons of learned courts concerning other leases and other agreements differing from that now before us. These considerations may be valuable for the purpose of ascertaining the intention of the parties; but, if the intention is clear and manifest, it must control, regardless of all other rules.

[3] The agreement between the parties in the case at bar is a lease of land, with the privilege of removing material, and is not a contract for the sale of material in place. If there is necessity to resort to the action of the parties to aid in its interpretation (Halperin v. McCrory Stores Corporation, 207 App. Div. 448, 202 N. Y. S. 385, and cases cited in opinion of Jaycox, J., affirmed 239 N. Y. 547, 147 N. E. 189), we find that, in accordance with their agreement to pay the minimum rental of $1,500 for each 3 months of each current year, whether they removed sand or not, the defendants during the term of the lease prior to April 1, 1919, when they began operations, regularly paid the quarterly minimum rental. I am therefore forced to the conclusion that the learned justice erred in granting defendant's motion for nonsuit, and that the judgment should be reversed on the law and a new trial granted.

The appellants insist that their motions for judgment on the pleadings for the rent accruing prior to the date when the notice of cancella-. tion became effective, viz. August 21, 1924, should have been granted by the court, leaving the matters to be litigated at the new trial to the rent accruing after the date of alleged cancellation. If I am right in my interpretation of the agreement between the parties, I see no escape from the proposition that no defense is pleaded to the claim for the rent prior to August 21, 1924.

The pleadings in actions No. 2 and No. 3 are not printed in this record, although the caption of the minutes of the trial is headed "Actions 1, 2 and 3," and it is stipulated that "these three cases be tried together," and the record shows that they were tried together. However, there appears to be no dispute about the matters involved in actions 2 and 3, and the nature of these actions is shown in the statement at the head of the printed case. The alleged defenses of the defendant respondent are set out in the answer in action No. 1.

[4] As to the minimum rental sued for in action No. 2, it was for the quarterly installments which became due after December 21, 1923, when the defendants admit they "abandoned" the premises on their theory that "the said premises were totally exhausted of sand and gravel." But the parties by their written lease under seal had expressly provided for the only contingency that would justify a cancellation of the lease. The lease contains no provision for cancellation on the ground of exhaustion of sand and gravel. Such "exhaustion," if proved, would be no defense to the plaintiffs' claim for the minimum rental down to the end of the term.

The lease of the property was for 10 years, with an absolute covenant to pay a minimum rental of $6,000 per year in each year of the term. If there was any "exhaustion" of sand and gravel, obviously it was brought about by defendant's excavation of excessive quantities of sand and gravel during the first 61⁄2 years. Under the lease, such proceedings on the part of the tenants were not to terminate the lease. It was only in case extended beds of clay were discovered upon the leased property within 50 feet of the natural surface of the ground,. upon which beds of clay there was not more than 12, feet of sand and gravel, with the result that a deposit of sand or gravel of at least 12 feet in thickness was not available to the tenant, in that case only was the tenant entitled to give 3 months' notice of his intention to cancel the lease, upon the expiration of which period the future obligations of the parties should terminate.

But this was not the reason stated in the answer for defendant's "abandonment" of the premises in December, 1923. It says in its answer that it abandoned the premises because there remained no sand or gravel thereon which could be excavated. In other words, it had excavated to such an extent that it had used up all the sand and gravel which was upon the property when leased. There is nothing said in this third defense about the existence of any "beds of clay," nor does it allege any compliance with the requirement that it should give three months' notice of cancellation. It simply packed up its machinery and moved away, abandoning the leased property in December, 1923, without any 3 months' notice. This, in my opinion, it could not do. That was not the intention of the parties as disclosed by the lease. If it claimed a right to cancel the lease, it should give the 3 months' notice, at the expiration of which it could be heard to assert that the "beds of clay," etc., existed which gave it a right to cancel the lease.

I again assert that the transaction between the parties was not a sale of sand and gravel. It was a 10-year lease of property, with privilege of removing sand and gravel, but with a similar provision for the payment of a minimum rental during each of the 10 years, whether the. tenant removed material or not.

Strictly speaking, it may be doubted whether the notice of May 21, 1924, assuming to cancel the lease, was in any case effective, because it is very evident that the tenant was not asserting the existence of any "beds of clay" with insufficient sand or gravel covering them. It was abandoning the premises because it claimed it had excavated all the sand by December, 1923. But, taken in connection with the fifth. separate defense, it may be said that the defendant asserts in the separate defense what it did not assert in its notices, and which seems to me to be somewhat inconsistent with its previous statement. But, assuming that the clay beds existed, in that case respondent had a right. to cancellation 3 months after they served the notice, viz. August 21, 1924, and up to that date they were responsible for the minimum rental

(219 N.Y.S.)

In my opinion the judgment should be reversed upon the law, with costs. Plaintiffs' motions for judgment on the pleadings in action No. 1 and on the first cause of action in action No. 2 granted; the remaining causes of action to be severed, and a new trial granted as to the issues arising thereon, with costs to appellants to abide the event. Settle order on notice.

MANNING and YOUNG, JJ., concur.

KAPPER, J. (dissenting). I do not think this was a lease of land, but that it was a sale of sand and gravel. The period of 10 years was the fixation of time for the exercise of the privilege of removal of the sand and gravel, and the sum of $60,000 was exacted as the minimum amount to be paid. Far in excess of that sum has been paid, and the plaintiffs now have their land, and for some time have had it freed from the defendant's occupancy.

JAYCOX, J., concurs with KAPPER, J.

(218 App. Div. 842)

PEPPER et al. v. ALMOND REALTY CO., Inc.

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

1926.)

Pleading 239 (2)-Case improperly stricken from day calendar after amendment of complaint, with direction that case be retained on day calendar.

Order permitting amendment of complaint properly directed that case retain its place on day calendar, and, in absence of appeal, subsequent order striking case from day calendar was unwarranted.

Action by David Pepper and another, as administrators of the estate of Joseph Pepper, deceased, against the Almond Realty Company, Inc. From an order striking the cause from the day calendar, plaintiffs appeal. Reversed on the law, and motion denied.

Argued before KELLY, P. J., and JAYCOX, YOUNG, KAPPER, and LAZANSKY, JJ.

Abraham M. Fisch, of New York City, for appellants.
James J. Mahoney, of New York City, for respondent.

PER CURIAM. Order striking cause from day calendar reversed on the law, with $10 costs and disbursements, and motion denied, without costs.

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

The provision of the order permitting an amendment of the complaint, directing that the cause retain its place on the calendar, was properly made. Stehli Silks Corporation v. Kleinberg, 200 App. Div. 16, 192 N. Y. S. 284; Kelly v. Hilbert, 200 App. Div. 489, 193 N. Y. S. 263. No appeal was taken from that order. In face of it, the court was not warranted in making the order appealed from.

(218 App. Div. 840)

GEORGE v. GALANI et al.

1926.)

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

Evidence

334 (1)—Authenticated birth certificate is competent evidence of facts therein stated (Civil Practice Act, § 398, subd. 3).

Birth certificate, authenticated as provided by Civil Practice Act, § 398, subd. 3, is competent evidence of facts therein stated.

Action by Victoria Nony George against Eleni D. Galani and others. From an adverse judgment, the named defendant appeals. Judgment unanimously affirmed.

Argued before KELLY, P. J., and JAYCOX, YOUNG, KAPPER, and LAZANSKY, JJ.

Walter W. Welsh, of Brooklyn, for appellant.

R. & E. J. O'Gorman, of New York City, and Richards, Smyth & Conway, of Brooklyn, for respondent.

PER CURIAM. Judgment unanimously affirmed, with costs. The birth certificate, if authenticated as provided by subdivision 3 of section 398 of the Civil Practice Act, was competent evidence of the facts therein stated. Objection to its reception was not put upon the ground of improper authentication.

We are of opinion that the evidence fully supports the findings made by the trial court.

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

(128 Misc. Rep. 377)

(219 N.Y.S.)

CAMPBELL V. SCHMIDT, Commissioner of Charities and Correction.

(Supreme Court, Special Term, Erie County. December 6, 1926.) Officers 4-Failure of supervisors' annual budget to provide for salary of public officer held not to abolish such office.

Mere failure of supervisors' annual budget to specifically mention position of head keeper of penitentiary or to provide salary therefor held not to abolish such office.

In the matter of the application of Arthur E. Campbell for a peremptory writ of mandamus against Leo J. Schmidt, Commissioner of Charities and Correction of the County of Erie, commanding respondent to restore petitioner to the office as head keeper of the Erie County penitentiary. Application granted.

Carlton E. Ladd, of Buffalo (W. J. Wetherbee, of Buffalo, of counsel), for petitioner.

Robert C. Palmer, of Buffalo (M. Edwin Merwin, of Buffalo, of counsel), for respondent.

BROWN, J. By an order of this court granted February 23, 1926, affirmed by the Appellate Division June 29, 1926, 217 App. Div. 786, 216 N. Y. S. 809, it was adjudicated that the petitioner held the office of head keeper of the Erie County Penitentiary, and was entitled to be paid by the county of Erie his salary as such officer from October 1, 1925, to and including December 31, 1925. In compliance with that order, the respondent certified to the state Civil Service Commission the name of petitioner as such officer, and his salary was duly paid him as directed by the order. It was also determined by such order that the petitioner was protected in such provision by the Civil Service Law (Consol. Laws, c. 7) and could not be removed therefrom except upon charges duly preferred and an opportunity of being heard thereon.

The salary of such office being denied the petitioner from and after January 1, 1926, this application was made for a writ commanding the respondent to restore the petitioner to the duties of his office as head or principal keeper of the penitentiary. The return of the respondent upon such application, in paragraph sixth, admits that respondent stated that he would not restore petitioner to his former position or certify his pay roll, and alleges that he stated to petitioner that petitioner's position had been abolished by a resolution of the board of supervisors of Erie county.

It is alleged, in the respondent's return, in paragraph 12, that the finance committee of the board of supervisors, after considering the matter, agreed with respondent, and the office of head keeper was stricken.

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

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