Statement of case.

judgment in favor of plaintiff, entered upon the report of a referee.

This action was brought to recover the value of certain buildings erected by plaintiff's assignor upon premises leased by him of defendant's grantor.

The referee found substantially the following facts:

In February, 1855, a lease of certain premises in New York city was executed by D. Lynch Lawrence as lessor, and H. H. Winans as lessee, for the term of twelve years from the first of May following, at the yearly rent of $400, payable quarterly. The defendant became thereafter the owner of the premises; plaintiff is the assignee of the lessee. The lease contained covenants as follows: That the lessee and his assigns will pay the rent at the times limited for the payment thereof, and "shall also pay, bear and discharge all such duties, taxes, assessments and payments, as shall during the term be laid, levied, assessed or imposed on, or grow due or payable out of, for, or by reason of the said demised premises, or any part thereof, except for cutting through or widening a street; and shall also, on the determination of the estate hereby granted, deliver up the said premises within good and sufficient fence into the possession of the party of the first part, his heirs or assigns, without fraud or delay; that if the party of the second part, his executors, administrators or assigns, shall cause to be erected and built on the premises hereby demised any substantial building or buildings, and in case of damage or destruction by fire, or other casualty, shall repair or rebuild the same, so that such building or buildings, well and sufficiently repaired or rebuilt and finished, shall be standing on the said premises at the expiration of the said term, and shall perform all the other covenants, stipulations and agreements on his part to be performed, then the party of the first part, his heirs or assigns, shall, at the expiration of the said term, at his or their option, either grant unto the party of the second part, his executors, administrators or assigns, at the expense of the latter, a new lease of said premises for a further term of ten years thence next

Statement of case.

ensuing, at such annual rent as shall then have been agreed upon by the parties, or ascertained as hereinafter provided (but not less than the rent reserved by these presents), or then pay to the party of the second part, his executors, administrators or assigns, the just and fair value, to be ascertained as hereinafter provided, of any building which may be built and constructed by the party of the second part, and which may then be standing on the said premises; and to ascertain the value of any such building as may be standing on the said premises, and the augmentation of rent, if any, upon granting such new lease," the lease further provided that each party to the lease or assigns, etc., should nominate in writing an appraiser; this nomination to be made not more than a year, and at least five months before the expiration of the lease, and if one party nominated an appraiser and the other party failed to nominate within a month thereafter, then the appraiser nominated should appoint and associate with himself another appraiser, and the appraisers thus selected, in case of their difference in judgment, could add a third by ballot; and it was declared that the decision of the three appraisers "as to the value of said building, and as to the amount of such rent for a new lease shall be final and conclusive." The lessee in 1855 or 1856 erected a building on said premises. The plaintiff nominated an appraiser on the 10th of November, 1866, and served notice upon the defendant who, on the 1st day of December, 1866, gave notice of a similar appointment on his part; the appraisers made and delivered their decision about the 26th of January, 1867, fixing the value of the building at $1,200, and the rent for a new term at $700 per year. Plaintiff did not pay the taxes on the property for the year 1866. The lease expired May 1, 1867, when the defendant declined to execute a new lease and took possession. The referee gave judgment for the appraised value of the building, deducting the unpaid taxes. Further facts appear in the opinion.

A. B. Crane, for appellant. The covenants and stipu

Statement of case.

lations in the lease were conditions precedent, and their performance was absolutely requisite to fix defendant's liability. (Pike v. Butler, 4 N. Y., 360; Oakley v. Morton, 11 id., 25; Morris v. Sliter, 1 Den., 59; Comyn's Dig. Action, C. & E.; Clark v. Crandall, 27 Barb., 73; Porter v. Shepherd, 6 T. R., 312; Friar v. Gray, 4 H. of L., 565; Grant v. Johnson, 5 N. Y., 247; Brown v. Weber, 38 id., 187; Kerr v. Purdy, 51 id., 629; 4 Kent's Com. [m. p.], 125, and notes.) Until these covenants were shown to have been performed, or some sufficient excuse for their non-performance, or a waiver of performance shown, no cause of action existed. (Job v. Bannister, 4 K. & J., 374; Lawton v. Sutton, 9 M. & W., 795; McIntyre v. Clark, 7 Wend., 330; Pres't, etc., D. & H. Canal Co. v. Pa. Coal Co., 50 N. Y., 269; Glacius v. Black, id., 145.) Plaintiff to recover was bound to allege a performance of these conditions precedent, and if performance was denied to prove it. (Code, § 162; Chitty on Pled'gs, 309; Oakley v. Morton, 11 N. Y., 33; Clark v. Crandall, 27 Barb., 73; 1 Greenl. on Ev., § 78.) There was no ground upon which a court of equity would intervene to relieve from a failure or neglect to perform these conditions. (Pike v. Butler, 4 N. Y., 360; Benedict v. Lynch, 1 J., ch. 379; Hatch v. Cobb, 4 id., 569.) The referee erred in finding for plaintiff after finding that the taxes for 1866 were not paid by plaintiff before the end of the term. (2 Story's Eq., §§ 1314-1324; 2 Dan. Ch., [4th ed.], 1657; Flagg v. Munger, 9 N. Y., 500.) To make a just compensation defendant must be placed as he was before taking possession so as to exercise his option to give a new lease or pay for the building. (2 Story's Eq., § 1324; Wil. Eq., 56; Reynolds v. Pitt, 19 Ves., 134; Sparks v. Liv. Water Works Co., 13 Vcs., 428.) If this had been an equitable action instead of one at law no relief could have been obtained. (Story's Eq., §§ 1314-1323; Hill v. Barclay, 16 Ves., 406; 18 id., 63; 4 Kent's Com. [m. p.], 125; Wells v. Smith, 7 Paige, 22; 1 Platt on Corp., 733–753; Wells v. De Leger, 1 Daly, 39-45; Reynolds v. Pitt, 19 Ves., SICKELS-VOL. XXVIII. 52

Opinion of the Court, per MILLER, J.

134.) The consent to an appraisement by defendant was neither prima facie evidence of a performance by plaintiff, nor of a waiver of performance by defendant, nor was it an estoppel. (Roberts v. Opdyke, 40 N. Y., 259; 1 Story on Con., § 48; Raff v. Rinalde, 55 N. Y., 664; Jackson v. Cuyler, 1 J. Cas., 125; Gray v. Blanchard, 8 Pick., 292; French v. New, 28 N. Y., 147; 4 id., 360; Gardner v. Clark, 21 id., 399; Eddy v. Graves, 23 Wend., 82; Suydam v. Jones, 10 id., 181; Allen v. Jaquish, 21 id., 628; Dodge v. Crandall, 30 N. Y., 306; Collins v. Tobias, 26 id., 217; Smith v. Brady, 17 id., 189; Giles v. Caines, 3 Cai., 107; Garlingham v. Whitwell, 51 Barb., 208; Martin v. Angel, 7 id., 407; Rice v. Denny, 54 id., 277; 2 Pars. on Con. [6th ed.], 793, 801; Shipley v. Abbott, 42 N. Y., 448.)

John Clinton Gray, for respondent. Proof of the submis sion having been made, and of an award following thereon, the court will not interfere with it, unless fraud, corruption or misbehavior in the arbitrators or appraisers be shown. (Van Cortlandt v. Underhill, 17 J. R., 405; Shepard v. Merrill, 2 J. Ch., 276; Winship v. Jewett, 1 Barb. Ch., 173, 184; Sheppard v. Watrous, 3 Cai., 166; Munroe v. Allaire, 2 id.; Perkins v. Giles, 53 Barb., 342; Perkins v. Wing, 10 J. R., 143; Efner v. Shaw, 2 Wend., 567–570.) After the submission to appraisement, the relation of vendor and vendee existed between defendant and plaintiff. (Viany v. Ferran, 5 Abb. Pr. [N. S.], 110; Blackwell on Tax Titles, § 401; Maul v. Rider, 51 Penn. St., 377; Lloyd v. Lynch, 28 id., 419.) The default in payment of the tax of 1866 was a technical forfeiture which equity will relieve against. (Skinner v. Dayton, 2 J. Ch., 535; Davis v. West, 12 Ves., 475; Garner v. Hannah, 6 Duer, 262, 273; Crawford v. Waters, 46 How. Pr., 214; Livingston v. Tompkins, 4 J. Ch., 415; Carpenter v. Catlin, 44 Barb., 75; Spaulding v. Hallenbeck, 39 id., 88; Rose v. Rose, Amb., 332.)

MILLER, J. The provisions of the lease which constitute the basis of this action secured to the lessee, on conditions

Opinion of the Court, per MILLER, J.

therein expressed, a further term, or the payment of the just and fair value, to be ascertained by appraisers to be nominated by the parties, of any building which might be built and constructed by the lessee, and which might be standing on the premises. To enforce a covenant of this character the plaintiff should establish that he has a right to recover the value of the building erected by him; and as preliminary to sustaining such a right was bound to fulfill all the covenants and conditions precedent contained in the lease. It provided among other things that the lessee should pay all taxes during the term, and contained a condition that if the lessee should fail to perform any covenant or condition, that it should be lawful for the lessor to re-enter, repossess, have and enjoy the premises. The performance of this covenant by the plaintiff precedes in time the provision for the renewal of the lease or the paying for the building by the defendant, as therein provided; and until the plaintiff had fulfilled this condition, he had no remedy at law against the defendant. The authorities are numerous which uphold this doctrine. (Pike v. Butler, 4 N. Y., 360; Van Cortlandt v. Underhill, 17 Johns., 405; Shepard v. Merrill, 2 Johns. Ch., 276; Winship v. Jewett, 1 Barb. Ch., 173.)

In a case where a lease is executed with a rent reserved and with a proviso that the lessee may determine the lease on a previous notice, the payment of rent and the performance of other covenants are conditions precedent, and their fulfillment is essential to fix the defendant's liability. (Porter v. Shephard, 6 Term [D. & E.], 665.) The same rule applies in cases of a kindred character. (Brown v. Weber, 38 N. Y., 187; Kerr v. Purdy, 51 id., 629.) No action can therefore be maintained until such covenants are performed, or some sufficient excuse is made for their non-performance, or until it is shown that they are expressly or by operation of law waived by the party to be affected thereby. (Glacius v. Black, 50 N. Y., 145; Lawton v. Sutton, 9 Meeson & Welsby, 795.)