
    Elizabeth S. Van Beuren and Others, Appellants, v. Frances A. Wotherspoon and Others, Respondents.
    
      Landloi'd and tenant — arbitration as to value, for a renewal—enforced by the courts.
    
    A lease of certain lots provided that at the expiration of the term for which it was to run the lessor might either grant a renewal, at a rent which- should be agreed upon, or, failing such agreement, then that each party to such lease should choose a disinterested -person to appraise the lots as a basis for rent; and ■ that in case the two arbitrators differed they should choose an umpire “whose decision, under oath, shall fix and determine the same.”
    When the lease expired, the parties in interest appointed arbitrators, who finally failed to agree on July 34, 1895. Shortly after that date the lessee’s arbitra^ tor was taken sick and thereafter went to Europe for his health, and although the lessor insisted that an umpire should be chosen and the arbitration proceed, the lessee was unwilling to, and would not, act in the absence of his arbitrator, nor would he appoint a new arbitrator. As a result the lessor brought an action in January, 1896, to have the valuation of the property fixed by the court.
    
      Held, that when the arbitrators failed to agree, the only duty left for them to perform was to appoint art umpire, in the performance of whose duties under the agreement they were not required to be present or act;
    That a suitable person should be appointed by the court to make an appraisal.
    Appeal by the plaintiffs, Elizabeth S. Yan Beuren and others, from a judgment of" the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 27th day of June,' 1896, upon the decision "of the court rendered after a trial at the New York Special Term dismissing the plaintiffs’ complaint.
    
      Willicm, Mitchell, for the appellants.
    
      Nelson S. Spencer, for the respondents.
   Williams, J.

The action was brought to procure the valuation of certain lots and of the buildings thereon in the city of New York. The facts, so far as we need to refer to them here, are as follows : March 2, 1874, Mary S. Yan Beuren and Caroline Hoppoclc entered into a written agreement, under seal, wherein Mrs. Yan Beuren, party of the first part, leased to Mrs. Hoppock, party of the second part, the lot in question for twenty-one years from March 1, 1874, at the yearly rent of $1,000, payable half yearly on the first days of March and September. The agreement contained the following provisions, among cithers: At the expiration of the term hereby granted, the said party of the first part, her heirs or assigns, shall have the full liberty and choice • either to grant a renewal of this lease for the further term of twenty-one years thence ensuing, at such annual rent, payable half yearly (but not less than the rent of the last preceding term), as shall be agreed upon by the said parties, their heirs, executors, administrators or assigns, respectively. * * * And in the event ofj their not agreeing upon ¡such rent, each party shall choose a disinterested person to ascertain the same, which persons so chosen shall themselves, respectively, be owners in fee simple of one or more lots of land in the neighborhood of the one hereby demised, and shall, mJmaking their award or determination, in the said premises,, undpr odth, appraise and value the said lot of land hereby demised, at its full and fair worth or price at private sale, considering the same as; an unincumbered vacant lot; and five, per cent on the amount of their said ¡appraisement or valuation shall be the annual rent of the said lot of land for such further term; and in case the arbitrators should differ in the amount of their appraisement or valuation, a's aforesaid, they shall then choose an .umpire, qualified as aforesaid, whose decision, under oáth, shall fix ' and determine the same. * * * Or to pay unto the said party of the second, part, her executors, administrators or assigns, the value of the front building now ¡thereon, or its substitute of similar character, if then standing, which value shall be ascertained by three disinterested persons, to be chosen as aforesaid. * * ■ * It is expressly understood that the party of the first part, her heirs and assigns, shall not be required to make her or their election in any case provided by this lease, until both the valuations herein provided shall have been made, unless the valuation be prevented by the fault of the lessor, her heirs or assigns, or her or, their arbitrator.”

Caroline ITo.ppock went into possession and occupied the lot, under this agreement, until her death November 23, 1890. She. left a will under which her interest in the lot and buildings and the agreement in question vested in the defendants, '.'either directly or by other wills or conveyances. Mary S. Van Beuren died August 9, 1894, and her interest in the lot and buildings and agreement vested in the plaintiffs. Before the term of the lease or agreement expired, and as a result of negotiation between the parties, there was a failure to agree upon the value of the lot or buildings, and in February, 1895, each party selected an arbitrator, under the agreement, the plaintiffs selecting Mr. Jackson and the defendants Mr. Whitridge. March 4, 1895, two days after the expiration of the term, the arbitrators proceeded to act, and made efforts to agree with each other; and, finally, and in July, 1895, it was determined that they could not agree. The plaintiffs’ arbitrator appraised the lot at $100,000 and the building at $15,000. The defendants’ arbitrator appraised the lot at $80,000 and the building at $40,000. Thereupon, the plaintiffs’ arbitrator, under date of July 24, 1895, wrote the defendants’ arbitrator, sending a list of names of persons, proposed by him, from which to select the umpire, and a blank appointment, asking him to select one of the names, insert it in the blank, sign and return for the signature of plaintiffs’ arbitrator that day, so that the appointment could be made before he left for Upper Saranac lake to be gone several weeks. Fo answer was made to this letter until the next year, June, 1896.

Early in August, 1895, defendants’ arbitrator met with an accident and became seriously ill and unable to attend to any business. In October, 1895, as soon as he was able to be about, he went abroad and did not return until the middle .of May, 1896. In the meantime, and September 25,1895, plaintiffs’ attorneys wrote to defendants’ attorneys calling attention to the fact that the letter of July 24, 1895, by plaintiffs to defendants’ arbitrator had not been answered, and notifying him that this was a delay in the proceedings on the part of defendants’ arbitrator, and asking if he meant to refuse to proceed in the arbitration. To this letter defendants’ attorney replied September 27, 1895, informing plaintiffs’ attorney of the accident to and sickness of defendants’ arbitrator, and saying that he did not refuse to proceed, but was most anxious to go on with the arbitration, and would inquire as to the condition of defendants’ arbitrator and ascertain how soon it would be possible to proceed. October 2,1895, the plaintiffs’ attorney, by letter, asked defendants’ attorney to submit names for an umpire. October 3, 1895, defendants’ attorney wrote plaintiffs’ attorney that the agreement permitted the arbitrators to appoint the umpire irrespective of the wishes of the parties, and that he could not speak for the defendants’ arbitrator; that so far as his clients were concerned any one of four persons, whose names he mentioned, would be agreeable; that he did not, by sending the names, intend to make any formal submission of names that would bind defendants’ arbitrator; and as the proceeding could not go on in the absence of the arbitrator it was useless to submit any names then. To this letter plaintiffs’ attorney replied, agreeing to accept one of the gentlemen whose names were submitted by defendants’ attorney, viz., Mr. Wickersham, as umpire, on condition that defendants would proceed at once before him alone, without either arbitrator, to determine the value of the lot and buildings; that plaintiffs’ arbitrator informed them two' days before, that defendants’ arbitrator had gone to Europe on account of his ill-health, and that their clients would not consent that the arbitration should stand over until defendants’ arbitrator was able. to proceed, but would consent that the papers appointing Mr. Wickersham umpire be signed by defendants or their attorney with the same force and effect as if signed by defendants’ arbitrator himself. On the same day defendants’ attorney wrote plaintiffs’ attorney that neither he nor his clients felt authorized or willing in the absence of their arbitrator to agree in his behalf upon an umpire, and certainly were unwilling to proceed before the umpire in the absence of their arbitrator; that, as he, the' -¡attorney, understood the law, the presence of each arbitrator was necessary to the validity of the proceeding, the agreement providing that the value of the building shall be ascertained by three disinterested persons, to be chosen as aforesaid ; that he regretted the delay, but that neither party could be prejudiced, as his clients were entitled to the possession ’of the premises, as tenants from year to year. October 31, 1895, plaintiffs’, attorney replied to the letter of defendants’ attorney of October 11, 1895, saying that as defendants’ arbitrator was abroad for his health and intended to remain for an indefinite time, the plaintiffs requested defendants’ attorney to appoint another arbitrator in his place, to the -end that an umpire might be appointed and the arbitration brought to a conclusion, and urging that, if the defendants refused tó do this, the defendants’ attorney would say what he proposed to do; that they wanted this matter concluded so that they could .exercise their option of -renewing the lease or paying for the building; and that they could not agree that delay was not prejudicial, or that his clients were entitled to the possession of the premises as tenants from year to year. November 6,1895, defendants’ attorney answered the letter of plaintiffs’ attorney-of October 31, 1895, saying that he thought defendants’ arbitrator would be back in a month or two, and they were entitled to his judgment and experience. Upon subsequent inquiry, December 11, 1895, by plaintiffs’ attorney, defendants’ attorney informed him that defendants’ arbitrator’s return was not fixed upon, but it would probably be about February 1, 1896. After waiting until January 17, 1896, and nothing further being done or proposed by defendants, and their arbitrator still remaining abroad, the plaintiffs brought this action. The trial did not take place until June 19, 1896, and the court then decided that the action could not be maintained; and dismissed the complaint. The trial court based its decision upon the ground that, failing mutual agreement, each party to the lease was entitled to the strenuous and diligent efforts, not to say eager and conscientious co-operation, towards a valuation of the lot by two disinterested arbitrators, with an eventual umpire, and similarly towards a valuation of the building by three disinterested persons; without making and manifesting such an effort neither could resort to the court for either valuation. This the plaintiffs, in my opinion, have neither done nor shown.”

It seems to us this conclusion must have resulted from an incorrect interpretation of the agreement itself.

The court evidently assumed that the valuation of the building was to be ascertained only by the joint appraisal of the three persons as arbitrators, instead of by the two as arbitrators, if. they agreed; and, if they failed to agree, then by the umpire selected by them, such umpire acting alone in determining such value. ■ In this, we think, there was error. It is very clear that the value of the lot was to be determined by the two arbitrators alone if they could agree, and, if they failed to agree as to the value, they were to appoint an umpire, and this being done, the duty of the arbitrators ended, and the matter of value rested in the determination of the umpire alone. (Lyon v. Blossom, 4 Duer, 318, 325, and cases therein cited; Brown v. Lyddy, 11 Hun, 451; Wood on Arb. & Awards [ed. 1872], 241.)

It is equally clear to us that precisely the same power and duty was imposed upon the three persons, and each of them, as to the value of the building. The language óf the agreement was “ which value shall be ascertained by three disinterested persons, to be chosen as aforesaid.” Under this language two of the persons would be chosen by the parties themselves, and the third could only be chosen by the two already selected by the'parties, and only in the event that the first two themselves disagreed. There can he no possible reason for saying that when the two persons should be chosen by the parties themselves, these two should not be regarded as arbitrators, and that when the third was chosen after a disagreement between the two arbitrators, he should not he regarded as an umpire. : The two provisions should be read together, and the latter should be construed in view of the clear meaning of the former. Nothing in the language indicates an intention to require a different rule of action by the three persons in the case of the valuation of the building from that in the case of the lot. The three persons were evidently' expected to act as to the building as tliey would act as to the lot.- And in this action the valuation of. the building was to be ascertained by them in the same manner as the value of the lot. This was á common-law arbitration, and not one under the Code of Civil Procedure, and the .only reasonable construction to be given to the agreement, it seems to us, is the one we have suggested'. It was not provided that the three persons should all be arbitrators, and they could not well be such if chosen as provided in the case of the lot; two must be arbitrators and one an umpire. And if such was -to be their designation, the1 only reasonable conclusion is that they were to act in the same manner.as the three persons were to act with ¡reference to the lot. Agreements in precisely similar terms have been the subject of construction by the General Term of the Supreme: Court, first department. (Brown v. Lyddy, 11 Hun, 451; Lorenzo v. Deery, 26 id. 447.) In the first case the opinion was written by Mr. Justice Brady, and was concurred in by Presiding • Justice Davis, and in the other case the opinion was written by Mr. Justice Daniels, and was concurred in by Presiding Justice Davis. In the first case the same construction was given to the agreement that .we have given here. In the other • case an entirely opposite construction was given to the agreement. In the first case the form of the submission to the arbitrators does not appear, and we are led by the report of the case to infer that it was by parol, as it is here. In the last case the submission was in writing signed by the parties, though not acknowledged, proved or certified, and the arbitration was not, therefore, governed by the provisions of the Code of Civil Procedure (§ 2365 et seqi), and was in no way affected by those provisions (§ 2386).' The submission, however, expressly provided that “ the third person to be selected should, with the two chosen by the parties, ascertain the value of the building as provided in the lease.” The parties, therefore, by their submission made the third party an arbitrator and not an umpire, and thereby gave a practical construction to the language of their agreement, which the court was justified, if not bound, to follow in that particular case.

In the absence of such formal submission we may assume the presiding justice would not have Concurred in that decision, ‘which would then have been in direct conflict with the former decision of the same court. Having these two decisions in mind, we must adhere to the conclusion already expressed as to the construction of the agreement in this case.

This construction being given to the agreement, there can be no question as to the right of the plaintiffs to maintain this action. When the arbitrators failed to agree. as to the value of the lot and building in July, 1895, the only duty left for them to perform was to choose an umpire. It was entirely unnecessary for them to bé present, or to act with the umpire in the performance of his duties under the agreement. The defendants’ arbitrator practically refused to act in the performance of his duty, to agree with the plaintiffs’ arbitrator in selecting a person as umpire. He should have acted at once when it became a settled fact that the arbitrators could not agree, and that was July 24, 1895. He was called upon to act at that time by the plaintiffs’ arbitrator, who submitted to him a list of names. It is said that he did consider these names and prepared an answer to be sent to plaintiffs’ arbitrator, and was still considering the matter when he met with a severe accident, and that a serious illness resulted which rendered it impossible for him to transact any business. This was the early part of August, 1895. He remained in New York until October, 1895, and then was able to be about and went abroad for his health. Before he went abroad, however, and in September, 1895, the plaintiffs’ counsel called the attention -of defendants’ counsel to the failure of defendants’ arbitrator to act in the matter of choosing the umpire, and all through the month of October, 1895, the plaintiffs’ counsel was urging upon defendants’ counsel the selection of ah umpire so that the proceedings might be brought to a conclusion. There is nothing in the case to show that defendants’ arbitrator might not, before he went abroad or after he went, have agreed with plaintiffs’ arbitrator upon the person to be selected as umpire, and have signed the paper appointing him. Any person satisfactory to defendants should have been satisfactory to him. The plaintiffs’ and defendants’ counsel did agree upon a person satisfactory to all of them, Mr. Wickersham. We see no' reason why the defendants should not have asked their arbitrator to unite in his appointment, or why the arbitrator, upon being requested by the defendants, should not have signed the paper making such appointment. The defendants refused to do anything to bring this about. The plaintiffs were ivilling to have the defendants themselves sign the appointment, and to agree it should have the same force and effect as though signed by their arbitrator himself. The defendants refused to do anything except to wait until the arbitrator should come home and be able to be present at the further hearing of the matter. The plaintiffs asked defendants to ' appoint another arbitrator, but defendants would not do that. The plaintiffs used their very best efforts during October and November, 1895; and waited through December, 1895, and until the middle of January, 1896, and then, unable to secure an appraisal of the lot and building in any other way, commenced this action. There was not only ¡a neglect, and practically a refusal by defendants’ arbitrator to act, as his duty required him to do in the selection of an umpire, but evidently such neglect and refusal to act were in harmony with the wishes and advice of the defendants. Certainly the arbitrator- would have acted in appointing Mr. Wickersham if the ; defendants had desired or requested it.

Under these circumstances, the plaintiffs were clearly justified in applying to the court for relief in the premises, and were entitled to maintain this action.

It has frequently been'held that where a party refuses to appoint an arbitrator, or the arbitrator refuses to act, the court, in the exercise of its equitable jurisdiction, will itself afford relief to the injured, party by ascertaining and fixing the value of the property itself. (Viany v. Ferran, 5 Abb. Pr. [N. S.] 110; Kelso v. Kelly, 1 Daly, 419; Graham v. James, 7 Robt. 468; Dunnell v. Keteltas, 16 Abb. Pr. 205.) And that a court of equity will, by au appropriate remedy, secure to either party to a lease the benefit of a clause providing for an arbitration as to the value of the property, though they cannot decree specific performance of an agreement to arbitrate. (Johnson v. Conger, 14 Abb. Pr. 195; Smith v. Rector, etc., 107 N. Y. 610.)

Within the well-settled rules laid down in these cases, and in view of the action of the defendants with reference to this arbitration,, the court was called upon to afford the plaintiffs relief in this-action, and should have done so. It did permit the parties on both sides to give evidence as to the value of the lot and building, but-finally refused to fix and determine such value. In this, we think, the court erred. Having acted as they did, the' defendants were not entitled, at the time of the trial, to have the matter of values, remitted to the arbitrators merely because the ■ defendants’ arbitrator had finally returned and was willing to proceed with the-arbitration. They should not have been permitted to delay the-, matter for nearly a year and until the trial of plaintiffs’ action was. brought on, and then defeat the action by offering to proceed and. do what it was their duty to do nearly a year before, and before the-plaintiffs had been put to the trouble and expense of bringing and. trying their action.

For the reasons herein suggested the judgment should be reversed and a judgment entered appointing a suitable person to appraise- and value the lot and building, etc., as prayed in the complaint,, with costs of the action and of the appeal.

Yan Brunt, P. J., Rumsey, Patterson and Ingraham, JJ.,. concurred.

Judgment reversed, and judgment entered appointing a suitable-. person to appraise and value the lot and building, etc., as prayed in. the complaint, with costs of the action and of appeal.  