and 140 New York State Reporter Charles S. Taber, for appellants. WOODWARD, J. This proceeding was brought pursuant to the provisions of title 4 of chapter 17 of the charter of the city of New York (Laws 1901, p. 405, c. 466), for the purpose of acquiring title to land required for the purpose of opening Avenue D, from Rogers avenue to East Thirty-Fourth street, as laid down in the commissioners' map of the city of New York. Avenue D as laid down is located almost exactly in the middle of a long, narrow strip of land known as the "Pope Farm." After taking the land required for Avenue D (a strip 80 feet wide) there was left a strip of land averaging 553.50 feet wide on the north side of the street, and a strip averaging 35.48 feet wide on the south side. The total awards for the land actually taken for the street (what is known in the proceedings as parcels 1 and 3), being 116,000 square feet, was $38,827, or about 33 cents a square foot, and for parcel 5, being 20,800 square feet, $3,308, or a fraction less than 16 cents per square foot. The commissioners in their report also assessed the land left after the street had been carved out of the tract, and in so doing in their report fixed the aggregate assessment for this improvement at $23,166.68. Section 980 of the charter of the city of New York provides as follows: "The said commissioners shall in no case assess any house, lot, improved or unimproved lands, more than one-half the value of such house, lot, improved or unimproved land, as valued by them." It is claimed by the appellants that the commissioners violated this provision of the charter by imposing an assessment on the lands taken greater than one-half their value. If the lands not taken are to be figured at the same rate per square foot as fixed by the award for the land actually taken for the street extension, then the contention of the appellants is right. The aggregate assessment stated in the report is $23,166.68, whereas the land not taken, computed at the same rate per square foot, aggregates $30,502.36, and one-half that sum is $15,251.18, which sum the appellants contend is the maximum sum which the commissioners could assess against these parcels. The respondent contends that there is no warrant in law for the contention that the commissioners must place the same value upon the lands abutting Avenue D as upon that part of the tract taken for opening that street. On the other hand, it is urged that the instant the title to Avenue D was transferred to the city the abutting lands took a new and additional value, which the commissioners were justified in considering in fixing the value of the lands to be assessed. It is quite manifest that the commissioners must have pursued this course to justify the assessment actually made. We have examined the testimony as to values given by the four witnesses called in this proceeding (two for the city and two for the owners), and in their testimony they all seem to have assumed the whole tract to have been of equal value, and testified of its value as a tract, without in any way discriminating in favor of the parcels left as against the portion taken. In view of this evidence on the part of the witnesses both for the owners and for the city, this court is justified in assuming that the part taken was of the same character as the balance of the land (Matter of Mayor [Lafayette Avenue] 103 App. Div. 496, 93 N. Y. Supp. 84), and that the commissioners, in making the assessment complained of, took into consideration what they deemed to have been the increased value of the remaining parcels by reason of the extension of Avenue D. The question there is: Was that course justified under the statute? The section above quoted, limiting an assessment to not "more than one-half the value of such house, lot, improved or unimproved land, as valued by them," is silent as to the method which the commissioners should employ in fixing the valuation-whether as determined before or after the street extension had been made. The question raised may perhaps be answered by supposing the converse of the situation presented on this appeal. Assume that, instead of the property not taken being benefited by the proposed extension, it had been seriously depreciated. Such a case is quite possible; for a street might be extended through a strip of land at such a grade, or might leave the parcels untaken of such a shape, as to seriously depreciate the value of those parcels, instead of conferring benefits. In case of such a depreciation it could hardly be argued that the commissioners would be justified in assessing the land not taken on the basis of its former valuation per square foot. Such method of procedure would be productive of rank injustice. We therefore conclude that commissioners, in determining the value of the parcels untaken, must determine and fix that value on what the parcels are worth with the street extension made, and the title to the land within the street lines vested in the city of New York. The commissioners, therefore, having been lawfully justified in pursuing this method, and having certified in their report that they have followed and complied with the directions of the statute under which they acted, and limited "our assessment for benefit to one-half the value of the lots or parcels of land lying within said area or district of assessment as valued by us, pursuant to the provisions of section 980 of the charter of the city of New York," and nothing appearing in the record to the contrary in this case, under the authority of Matter of Whitlock Ave., 178 N. Y. 421, 70 N. E. 924, we conclude the order appealed from must be affirmed, with costs. All concur. JANPOL v. GOLD. (Supreme Court, Appellate Division, Second Department. November 22, 1907.) BROKERS RIGHT TO COMPENSATION-CONDITIONS PRecedent. A provision in a brokerage agreement providing for additional payment to the broker when the purchaser shall reach a designated stage in the process of the construction of houses on the land purchased is a condition precedent, and the broker, to recover the additional payment, must show performance thereof, or that the owner was responsible for the failure of the purchaser to proceed. [Ed. Note. For cases in point, see Cent. Dig. vol. 8, Brokers, § 70.] and 140 New York State Reporter Appeal from Municipal Court of New York. Action by Emanuel Janpol against Louis Gold. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued before HIRSCHBERG, P. J., and WOODWARD, GAYNOR, RICH, and MILLER, JJ. Edward Snyder, for appellant. RICH, J. This action was brought to recover $150, balance claimed to be due under a clause in a brokerage agreement providing that: "One hundred and fifty ($150) dollars additional, when said Schlosberg shall reach the first tier of beams in process of construction of houses upon said eight lots." Plaintiff sold the lots to Schlosberg, who agreed to erect houses thereon, and was paid $50 for his commission, and defendant promised to pay the further sum of $150 as above provided. The purchaser was unable to pay for the lots and proceed with the construction of the buildings, and "the first tier of beams" was never reached. It was a condition precedent to plaintiff's right to recover that the first tier of beams should be reached in process of construction (Turner v. Lane, 47 Misc. Rep. 387, 93 N. Y. Supp. 1083; Tooker v. Arnoux, 76 N. Y. 397); and, unless it be made to appear that the defendant was in some way responsible for the failure of Schlosberg to proceed, plaintiff cannot recover. We are unable to find any satisfactory evidence from which this inference can be drawn. The judgment must be reversed, and a new trial ordered; costs to . abide the event. All concur, except HIRSCHBERG, P. J., not voting. DAGETT v. CHAMPNEY. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) 1. LANDLORD AND TENANT-RIGHTS AND LIABILITIES-HOLDING OVER AFTER EXPIRATION OF TERM. Where a tenant having a lease for a year holds over at the expiration of his term, the law implies an agreement on his part to hold for another year on the same terms at the option of the landlord. [Ed. Note. For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 284, 378.] 2. SAME TERMINATION-SURRENDER BY OPERATION OF LAW-WHAT CONSTITUTES. In order to constitute a surrender by operation of law, there must not only be an abandonment of the premises by the tenant, but also an acceptance thereof by the landlord. [Ed. Note. For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, 353.] 3. SAME. The mere sending by the tenant of the keys of leased premises to the landlord before the expiration of the term does not of itself constitute a surrender. [Ed. Note. For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 365.] 4. SAME PROCURING NEW TENANT. Where a tenant offered to surrender premises before the expiration of the term, and abandoned them, sending the keys to the landlord, the sub sequent procuring of a new tenant by the landlord and putting him in possession constituted an acceptance of the surrender, relieving the tenant from liability for rent thereafter, but not for that accrued up to that time. Appeal from Trial Term, Warren County. Action by Forest Dagett against Emelie M. Champney. From a judgment for plaintiff, defendant appeals. Affirmed. The action is for rent. On the 1st of May, 1905, the defendant entered into a written lease under seal with Julia E. McCann, the plaintiff's assignor, by which she leased certain premises in Glens Falls for the term of one year, to commence on the 1st day of May, 1905, and to terminate on the 30th day of April, 1906, at a rental of $25.50 per month, payable monthly in advance. The defendant entered into possession of the premises, and occupied them during that year. She held over and continued to occupy the premises after the expiration of her lease and until about the 1st day of August, 1906. She paid rent during her entire occupancy. There was no agreement between the defendant and said McCann for such holding over, and there was no other agreement between them than the lease mentioned. About the 1st day of August, 1906, the defendant offered to surrender the property to said McCann, but such surrender was not accepted until about the middle of October, 1906, when Mrs. McCann leased the premises to another tenant. This action is for the rent for the months of August, September, and October, 1906. The court on the trial found the facts above stated, and awarded judgment for the plaintiff, who is the assignee of Mrs. McCann of said lease and all rights of action thereunder. From such judgment, the defendant has appealed. Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. James H. Bain, for appellant. Daniel J. Finn and Walter A. Chambers, for respondent. CHESTER, J. Where a tenant, having a lease for a year, holds over at the expiration of his term, the law implies an agreement on his part to hold for another year upon the terms of the lease, and the option is with the landlord to so regard it. Haynes v. Aldrich, 133 N. Y. 287, 31 N. E. 91, 28 Am. St. Rep. 636; Ackley v. Westervelt, 86 N. Y. 448; Schuyler v. Smith, 51 N. Y. 309, 10 Am. Rep. 609. That principle, however, is not seriously contended against by the appellant. Her principal claim is that she effectually surrendered possession of the premises on the last of July, 1906. The proof in this respect shows that on the 30th day of July the defendant wrote a letter to Mrs. McCann's attorneys, who were authorized to act for her in the matter, inclosing the key of the premises, and then left Glens Falls without informing them as to her whereabouts. Before that she had been told that the landlord had elected to regard her as a tenant for another year, and expected her to pay the rent in accordance with the terms of the original lease. The attorneys on July 31, 1906, immediately upon the receipt of the key, wrote two letters to the defendant, in one of which they inclosed the key, and in the other, to a different address, stated that they had returned the key to her in another inclosure, and that, in case it did not reach her, and was returned to their office, they would hold it there at her disposal, as the landlord would not consent to a surrender of the lease. This letter was received by the defendant, but the one containing the and 140 New York State Reporter key was returned to the attorneys, who retained it until the middle of October, when the key was delivered to a new tenant. The court has found upon this evidence that on or about the 1st day of August, 1906, the defendant, in violation of her agreement, attempted to surrender the premises, but that said attempted surrender was not accepted by the landlord, and said premises were not surrendered; and that there was no surrender of the lease prior to the time that the rent for August, September, and October, 1906, became due and payable from the defendant under and by virtue of the lease as so renewed. These findings are supported by abundant evidence, and that is decisive of the case against the defendant. In order to constitute a surrender by operation of law, there must not only be an abandonment of the premises by the tenant, but also an acceptance thereof by the landlord as a surrender. The mere sending of the keys to the landlord did not of itself constitute a surrender. 24 Cyc. 1373. The landlord's act, however, in procuring a new tenant in October, and putting him in possession of the premises, did constitute an acceptance of the surrender, and from that time the defendant was released from the payment of any further rent, but such acceptance did not relate back to the time when she undertook to surrender by sending the keys to the landlord. She had prompt notice that such surrender would not be accepted so there was at that time no mutuality between the parties. The judgment covers only the rent which accrued before the new tenant was obtained. For this the defendant was clearly liable, as there had been no acceptance of her proffered surrender of the premises until that time. There is nothing in the case of Gray v. Kaufman Dairy & I. C. Co., 162 N. Y. 388, 56 N. E. 903, 49 L. R. A. 580, 76 Am. St. Rep. 327, cited by the appellant, inconsistent with this view. The judgment should be affirmed, with costs. All concur. KELLY v. NEW YORK CITY RY. CO. (Supreme Court, Appellate Division, Second Department. November 22, 1907.) 1. APPEAL-DISMISSAL-GROUNDS-AMENDMENT OF ORDER APPEALED FROM. An appeal will not be dismissed, because the order appealed from was amended after notice of appeal, where no motion to dismiss was made and the party was apprised of the order sought to be reviewed. 2. ATTORNEY AND CLIENT-ATTORNEY'S LIEN - PROTECTION - DISCONTINUANCE BY PARTIES. Parties have the right to settle suits, and, while courts will preserve the lien of attorneys against collusion and fraudulent settlement, parties will not be compelled to litigate, and a discontinuance should be granted, when requested by both parties, though opposed by the attorney of record, who is unable to show authority to commence the action, as the existence of a lien depends upon such authority. 3. SAME-LIABILITY FOR COSTS. When, on appeal, the attorney is the real party interested, he will be required to pay the costs on an adverse decision. Appeal from Special Term, Kings County. Action by Margaret Kelly against the New York City Railway |