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permit the parties to determine a definite term, and still to provide that either may cut short that term in a perscribed way. Originally there was no definite term, and the only prescribed method of termination was by notice. Later a definite term was provided, which, however, I think could be and was made subject to termination by the prescribed notice. And we can, as we should, give full effect to every provision of the contract by such interpretation. The protection of the provision for 30 days' notice is available to either party, and it might well be that when it was written each desired it, and not one conceded it
In Schroeder v. Frey, 114 N. Y. 266, 21 N. E. 410, the court, per Bradley, J., say:
"When the language of a contract is plain and free from ambiguity, the understanding of the parties to it must be ascertained from its terms. And then whatever those terms fairly imply will be deemned embraced within it. Rogers v. Kneeland, 10 Wend. 219; s. c. 13 Wend. 114. It is when the meaning of an instrument is uncertain that resort may be had to extrinsic circumstances, leading to and attending the transaction, in aid of the interpretation of the language employed to express its terms. Blossom v. Griffin, 13 N. Y, 569, 67 Am. Dec. 75; Springsteen v. Samson, 32 N. Y. 703; Calkins v. Falk, 39 Barb. 620; Field v. Munson, 47 N. Y. 221."
The learned trial court lays stress upon the provision in the change of February 17, 1897, that the plaintiff, in addition to the compensation therein allowed to him, “shall, upon devoting the whole of his time to the business of the defendant, be allowed to deduct out of the first year's premiums collected by him on business secured by him, the further compensation of $150 per month," and makes the point that, if the contract could be terminated on 30 days' notice, the plaintiff "could not deduct $150 a month out of the first year's premiums collected by him on business secured by him." But this provision did not intend that the contract necessarily must last a year, and could not be terminated earlier, notwithstanding a provision for such termination. The "first year's premiums” refers to the premiums collected for the first year of the term of the assured from the assured, and the meaning, as I read it, is that as the plaintiff collects such premiums he may take out $150 each month during the term of the contract. It it not absolutely necessary, as I see it, that he must be employed for a year before he can collect a first year's premium. If this were so, how could he deduct $150 per month? It necessarily means no more than that, as such premiums came in to him for the defendant, he could take out of them $150 each month. A provision that is effective for the prescribed term of a contract does not forbid a provision that makes the contract terminable before the lapse of that term. The several cases cited by the learned counsel for the respondent for his proposition that if the contract mentions a time limit it cannot be canceled without cause do not, as far as my examination goes, reveal the existence of provisions in the contracts for termination such as is written into this agreement, and several of them are decided upon the ground that there was clear language in the contracts which indicated a fixed term as much as if it had been definitely stated. They are :100 applicable to the case at bar. I am of opinion that the 30-day clause was available to the defendant at the time it gave the notice of termination, and that therefore the plaintiff did not make out a case. and 136 New York State Reporter The motion made to dismiss the complaint at the close of the case should have been granted. Therefore I advise a reversal of the judgment and order, and that a new trial be granted; costs to abide the event.
(116 App. Div. 731)
MEADER V. BROWN. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) BROKERS—RIGHT TO COMPENSATION.
Where plaintiff was employed to sell a vested remainder owned by defendant for $55,000 net to the defendant, the purchaser to receive $175,000 if the life tenant should live less than 10 years, and $193,000 if she should live more than 11 years, and the purchaser to be required to reassign to the defendant $10,000 if the life tenant should die within 11 years, $20,000 if within 10 years, $25,000 if within 9 years, and $28,000 if within 8 years, and a purchaser accepted a proposition to buy an interest of $195,000, with certain contingent sums to be reassigned on the death of the life tenant within 10 years, not corresponding to those provided in the terms of the contract with plaintiff, the plaintiff was not entitled to recover the agreed compensation for his services.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Brokers, $ 66.] Appeal from Trial Term, Kings County.
Action by John F. Meader against Clarence E. Brown. From a judgment in favor of plaintiff, defendant appeals. Reversed.
The complaint is for services in procuring for the defendant a purchaser for a share in a vested remainder owned by him in property devised and bequeathed by his grandfather and father to him, dependent on a life estate therein in his mother.
Argued before WOODWARD, JENKS, HOOKER, RICH, and GAYNOR, JJ.
R. Robertson, for appellant.
PER CURIAM. The defendant had a vested remainder in real property devised to him by his grandfather, and in real and personal property devised to him by his father, dependent in each case on an estate therein to his mother for her life. She is still living. He employed the plaintiff by a written contract to negotiate a sale of a share therein for $55,000 net to the defendant, such share to be $175,000 if the life tenant, then 67 years old, should live less than 10 years, and $195,000 if she should live more than 11 years. The purchaser had also to agree to abate or reassign back to the defendant $10,000 if the life tenant should die within 11 years, $20,000 if within 10 years, $25,000 if within 9 years, and $28,000 if within 8 years. Any sum in excess of $55,000 paid by the purchaser was to be paid to the plaintiff for his compensation and to defray all expenses of the transaction. Such was the contract. The contract not being denied, the sole question of fact was whether the plaintiff had negotiated a sale--procured a purchaser-according to its terms. The evidence on that head was all that was relevant, and would cover only a few pages. This sole question of the case seems to have been much neglected by the plaintiff's side, and almost altogether by the defendant's side, while much irrelevant examination of witnesses was persisted in by both and especially the latter.
There is no evidence that a purchaser was procured on the defendant's said terms. The evidence of the attorney for the so-called purchasers is all that we have on that head. It discloses no offer or readiness to purchase on the said terms. He only testifies that he accepted a proposition to buy an interest of $195,000 in the defendant's vested remainder, which provided that, “if the life tenant lived beyond 10 years, the whole $195,000 was to remain the property of my client." He then testified to contingent sums to be abated or reassigned to the defendant on the death of the life tenant, which do not correspond to those provided for in the said terms of the defendant
His testimony on the subject is quite unintelligible. He held in his hand while testifying the proposition of sale made to him by the broker who worked with the plaintiff in the transaction and his acceptance of it in writing, but neither counsel looked at it or offered it in evidence. There were only two other witnesses, the plaintiff and his said associate broker, but neither was asked for or gave the terms of the sale which they claimed to have made. The defendant introduced no evidence, and excepted to the denial of his motion at the close to dismiss, which should have been granted, and to the direction of a verdict for the plaintiff.
It was testified that the sale price was $135,000. Deduct from this the $55,000 which the defendant was to get, and $80,000 is left. This, according to testimony, was to be disposed of by the purchasers by purchasing for $60,750 for themselves an annuity on the life of the life tenant which would be equal to annual interest at 5 per cent. on the said so-called purchase price of $135,000, viz., $6,750, and giving the balance of $19,250 to the plaintiff for his compensation, less $4,000 to be kept by the attorney for the purchasers. The defendant's mother refused to join in the application for such annuity, and it fell through. Then it is testified the purchasers were willing to keep the price of the said annuity in lieu of the annuity itself, and deposit it or invest it at interest. As the defendant was simply selling an interest in his estate for the sum of $55,000 net, to be paid presently, and was never to get any more, it is not apparent why the purchasers should say the purchase price was $135,000 and mix up the purchase of an annuity by the use of $60,750 thereof. Much time was taken up with this strange feature, but it was not explained. The sale was for $55,000, plus the plaintiff's compensation, and that is all there was of it. The purchasers could buy annuities as they liked. What had the defendant to do with that, and why was the purchase price to him fixed as $135,000? It does appear by the testimony of the associate broker of the plaintiff that the proposition in writing which the attorney for the purchasers accepted was submitted to the said attorney in the first week of May, whereas the agreement was got from the defendant to sell for $55,000 on May 10th. It was essential to know when the attorney accepted, for he testified that he did not know of the agreement of the defendant with the plaintiff to sell his interest for $55,and 136 New York State Reporter 000. If he had known of it, would he have offered to buy for $135,000? And was the agreement procured after such offer was made ? Attention is called to these matters only for the purposes of the next trial.
The judgment should be reversed.
Judgment reversed, and new trial granted; costs to abide the event.
(116 App. Div. 737)
POWERS V. STATE LINE TELEPIIONE CO.
(Supreme Court, Appellate Division, Second Department. January 11, 1907.) TELEGRAPHS AND TELEPHONES—USE OF STREETS.
A telephone company, holding a franchise from a village authorizing the placing of poles in the streets, cannot occupy land forming part of a street, owned by a citizen and subject only to those easements arising from 'a dedication of the street, without the consent of the owner and against his wishes, and without having acquired the right by condemnation.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, & 6; vol. 18, Eminent Domain, 8 317.]
Appeal from Trial Term, Westchester County.
Action by Thomas J. Powers against the State Line Telephone Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Argued before HIRSCHBERG, P. J., and WOODWARD, HOOKER, RICH, and MILLER, JJ.
Frank B. Vermilya, for appellant.
RICH, J. This appeal is from a judgment requiring defendant to remove certain poles, which it has erected in front of and adjoining premises of the plaintiff, together with the wires and cables strung thereon, and perpetually enjoining the defendant from replacing or erecting any poles, or putting up any poles or wires, in that portion of said street. The facts are not seriously controverted. The plaintiff is the owner in fee of that portion of Smith street in front of his premises in the village of Peekskill upon which the poles were erected. The village has about 1,000 inhabitants, and plaintiff's premises are near the extreme southern part of the village, 1,800 feet from the business portion thereof on one side, and on the other side, three blocks below, the village ends and the open country commences. Smith street is a side street running through a somewhat sparsely settled residential district. The defendant is a corporation incorporated under the laws of the state for the purpose of erecting, operating, and maintaining a telephone system, and holds a franchise from the village of Peekskill authorizing it to install, operate, and maintain a telephone system therein, and for that purpose to erect poles and string wires and cables upon and over the streets.
The 'record presents the question whether a telephone company, holding a franchise from a village authorizing the placing of poles and wires in its streets for the purpose of conducting its business, can occupy land forming part of a public street, owned by a citizen and subject only to those easements arising from a dedication of the street for those purposes, without the consent of the owner and against his wishes, without having acquired such right by condemnation proceedings. We prefer to hold that this cannot be done. In Eels v. American Telephone & Telegraph Company, 143 N. Y. 133, 138, 38 N. E. 202, 203, 25 L. R. A. 640, Peckham, J., in writing for the court, says:
“We think neither the state nor its corporation can appropriate any portion of the public highway permanently to its own special, continuous, and exclusive use by setting up poles therein, although the purpose to which they are to be applied is to string wires thereon and thus to transmit messages for all the public at a reasonable compensation. It may be at once admitted that the purpose is a public one, although for the private gain of a corporation; but the Constitution provides that private property shall ot be taken for public use without compensation to the owner. Where land is dedicated or taken for a public highway, the question is, what are the uses implied in such dedication or taking? Primarily there can be no doubt that the use is for passage over the highway. The title to the fee of the highway generally remains in the adjoining owner, and he retains the ownership of the land, subject only to the public easement. If this easement do not include the right of a telegraph coinpany to permanently appropriate any portion of the highway, however small it may be, to its own special, continuous, and exclusive use, then the defendant herein has no defense to the plaintiff's claim. Although the purpose of a public highway is for the passage of the public, it may be conceded that the land forming such highway was not taken for the purpose of enabling the public to pass over it only in the then known vehicles, or for using it in the then known methods for the conveyance of property or the transmission of intelligence. Still the primary law of the highway is motion, and whatever vehicles are used. or whatever method of transmission of intelligence is adopted, the vehicle must move and the intelligence be transmitted by some moving body, which must pass along the highway, either on or over; or perhaps under, it; but it cannot permanently appropriate any part of it.”
The decision in this case calls for affirınance of the judgment, unless the fact that the contention here arises over the ownership of the fee in a village street removes the case from the operation of the rule declared in that case. Upon the evidence disclosed in the record it is difficult to distinguish the facts upon which the questions involved in this appeal are based from those before the court in the Eels Case. Smith street is to all intents and purposes a country highway, although located within the village limits. Our attention has not been called to any case holding that the respective rights of the owner of the fee in a village street and a telephone company are controlled by the mere fact that the street is within the corporate limits of a village. While it has been held that there may be a difference between the extent of the public easement in a country highway and in a village street, dependent upon the actual necessities of the inhabitants of the latter for sewers, gas, water, and other conveniences, the court has recognized that the question depends largely upon density of population creating such necessity, and that the necessity for the dedication of a village street for such greater easement may be implied. It does not go to the extent, however, of divesting the owner in fee of a village street of any of the rights belonging to him in a country high