Citations
- 102 N.Y. 601
Full opinion text
Rapallo, J.
The only question in this case is whether the defendant, by entering into the contract of May, 1876, with the Flushing, Rorth Shore and Central Railroad Company, came into such a relation with the original lessor of the railroad in question, represented by the plaintiff, as to subject it to liability directly to her for the rent reserved by the original lease of January, 1873, from her devisor, Alexander T. Stewart, to the Central Railroad Company of Long Island. The facts are so fully stated in the opinion of my learned brother, Finch, J., that it is not necessary to repeat them in detail.
That the contract of A. T. Stewart with the Central Bail-road Company of Long Island, dated January, .1873, was a lease of the road for the term of fifty years, cannot, I think, be disputed, and thus far in the discussions in this court it has been conceded. The annual rent reserved was a percentage upon the agreed cost of the road, liable to be augmented by a percentage upon such further expenditures as might be made by’ the landlord during the term. If this had been all of the contract there would have been no' difference of opinion between us; but it contained further provisions which have given rise to the present discussion.
The ordinary covenant to surrender the demised premises on the last day of the term was made subject to the further provisions of the contract, which were that the lessee covenanted at the expiration of the said term of fifty years from January 7, 1873, to pay to the lessor the principal sum by him expended on the road, and that upon such payment, but not before, the payment of rent should thereafter cease, such rent, however, to be paid up to such time, and that upon such payment of such prvnevpal sum the lessee, its successors or assigns, should not surrender the said demised premises, but should be vested with the fee-simple of the right of way and all the property appurtenant thereto, owned by the lessor, and that the contract should thereupon,