
    Seaman vs. Civill.
    C. leased certain premises to S3, for the term of five years, subject to the fol ■ lowing provision: “ In case the said C. shall sell the said premises at any time after the first two years, he shall pay to the said S. fifty dollars, and allow him to gather the crops then sown or planted upon said premises, and S. to give it up to said 0.” Held that it might fairly be inferred from this provision of the contract that it was the intention of the parties that the §50 should be paid only in the event of a sale of the premises to a third party; and that the sum named was not recoverable upon a sale to S. himself.
    THIS is an appeal from a judgment of the county court of Albany county, affirming the judgment of a justice’s court. The defendant leased to the plaintiff certain premises situated in Castleton for the term of five years, subject to the following provision : “ In case the said Civill shall sell the said premises at any time after the first two years, he shall pay to said Seaman fifty dollars, and allow him to gather the crops then sown or planted upon said premises, and Seaman to give it up to said Civill.” The lease bears date January 23, 1860. On the 16th day of May, 1863, Civill sold and conveyed the premises to Seaman, who continued in the possession thereof. The action was brought by Seaman to recover the fifty dollars, and judgment having been rendered against him in the justice’s court, he appealed therefrom to the county court of Albany county, where the judgment was affirmed.
    
      John. H. Reynolds, for the appellant.
    
      Ira Shafer, for the respondent.
   By the Court, Ingalls, J.

In construing the instrument in question, the intention of the parties is to be ascertained, if possible, and, when ascertained, carried into effect so far as the rules of law will permit.

I think it may be fairly inferred from the provision of the contract, that it was the intention of the parties that the $50 should he paid only in the event of a sale of the premises to a third party.

[Albany General Term,

December 4, 1865.

By the above provision of the lease, Seaman, in case of sale, was to háve not only the $50, but also the right to gather the crops, which latter-privilege, is inconsistent with the idea of a sale of the premises to himself, which would embrace that right. But it was further provided that Seaman should surrender up the premises to Civill in case of sale, which is only consistent with the idea of a sale to a third party, Ho such surrender could have been contemplated .If Seaman became the purchaser, as it would be in effect surrendering the premises to himself, when the lease only provides for a surrender to Oivill.

It is quite obvious that the payment of the fifty dollars, and the right to remove the crops, was intended as a compensation to Seaman in case he was deprived of the possession of the premises before the expiration of his term, by a sale to a third party. Such is a fair and reasonable construction of the contract. Seaman has voluntarily purchased the premises and continued in the undisturbed possession of the same. If it had been the understanding of the parties that the $50 was to be paid in case of a sale to Seaman, it is but reasonable to infer that such sum would have been deducted from the purchase ! price of the premises, or some other provision then made for the payment thereof.

This is a consideration of some significance bearing upon the question as to the intention of the parties in regard to the payment of the $50, and indicates either that the plaintiff did not deem himself entitled to the money, or intended to waive the payment thereof. The plaintiff has failed to establish a cáse entitling him to recover, and the judgment of the county court must be affirmed, with costs.

Hogeboom, Peckham, Miller and Ingalls, Justice.]  