
    Jane McFadden, Respondent, v. Jacob Bloch and Mayer Bloch, Appellants.
    
      Vendor and purchaser — reservation of fee and rental damages against an elevated railroad — construction of time clause therein.
    
    The owner of property, abutting upon an elevated railway, after commencing an abutter's action for tbo recovei y of fee and rental damages against the railway company, conveyed the premises under an agreement with the vendees, which provided that the vendees should commence an action against the railway company and employ the vendor’s attorneys to conduct the same at the latter’s expense and which authorized the attorneys to pay the vendor all sums recovered after deducting the expenses of the suit. It also provided that the vendees should execute such deeds and releases as might be required by the judgment and should not sell the premises during the pendency of the action without notifying the attorneys. It. concluded with the statement that the agreement, was to bind the parties, their heirs, executors and assigns, “ save that this agreement shall cease and come to an end at the expiration of five years from the date hereof.’’
    Contemporaneously with the execution of the agreement, the vendees executed papers retaining the vendor’s attorneys to commence the action and authorized them to pay the amount recovered to the vendor. Eight months after the five years mentioned in the agreement had elapsed an action was brought by the vendor’s attorneys in the name of the vendees, in which the vendees were awarded judgment and were required to execute certain releases to the defendant company. This they refused to do, thus preventing the payment of the judgment.
    
      Held, that the vendor was entitled to recover the amount of the judgment from the vendees;
    That, the five years’ limitation was intended to relate to the clause forbidding the vendees from selling the property during the pendency of the damage suit without notifying the attorneys.
    Appeal by the defendants, Jacob Bloch and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4tli day of November, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.
    This appeal was transferred from the first department to the second department.
    
      
      John R. Farrar, for the appellants.
    
      Henry G. Atwater [Alfred B. Gruikshank with him on the brief], for the respondent.
   Goodrich, P. J.:

The plaintiff, being the owner of premises in New York city, on Ninth avenue, abutting the Manhattan Elevated railway, in December, 1892, commenced the usual action again'st the railway company to recover fee and rental damages. In April, 1893, she conveyed the premises to the defendants. At the same time an agreement was made between them which, after reciting that it was intended that the plaintiff should receive all rental and fee damages, provided that the defendants should commence an action against the railway company and employ the plaintiff’s attorneys to conduct the same at the expense of the plaintiff, and authorized such attorneys to pay her all sums recovered, after deducting the expenses of the suit; it also provided that the defendants should execute such deeds and releases as might be required by the judgment, and that the defendants should not sell the premises during the pendency of the action without notifying the attorneys. At the end of the final clause of the agreement is a sentence to the effect that the agreement was to bind the parties, their heirs, executors and assigns, “ save that this agreement shall cease and come to an end at the expiration of five years from the date hereof,” viz., April 24, 1893. Contemporaneously, the defendants executed papers retaining the plaintiff’s attorneys to commence such action, and authorized them to pay the amount recovered to the plaintiff.

A suit was commenced by said attorneys in the name of the defendants in December, 1898, over eight months after the expiration of the five years named in the agreement. The suit was substituted on the calendar in place of the plaintiff’s suit, and resulted in a judgment for the present defendants in which $800 was fixed as the fee damage. The railway company, in June, 1899, tendered the defendants that sum, but they refused to execute the deeds and releases to the company as required by the judgment upon payment of the damages, and the company refused to pay the money. The present action is brought to recover the plaintiff’s damages resulting from such refusal of the defendants to execute such releases.

The decision of this appeal depends upon the construction to he given to the above quoted clause of the agreement.

The court at Special Term delivered an opinion which is hereto appended, and we agree with its conclusions.

In Halpin v. Ins. Co. of N. A. (120 N. Y. 73) it was held that where a claim of forfeiture is based upon a clause in a contract which is capable of two constructions, one of which will support aud the other defeat the principal obligation, the former will be preferred; the forfeiture will not be permitted on equivocal or doubtful language ; and in Russell v. Allerton (108 N. Y. 288) the court, in a case of doubtful language in a contract, refused to accept the construction which would place the party in a purely business matter wholly at the mercy of others with whom they were contracting.

We are thus brought to the consideration of the final clause.. If we say that all rights and liabilities thereunder were to cease absolutely at the end of the five years, the result will be that the plaintiff, who never sold the damage claim to the defendants, but on the contrary reduced the purchase price of the house $2,000 as a condition of her retaining the right of action against the railway company, will lose her claim. We shall not be swift thus to decide. On the other hand, it is a reasonable construction that the final clause was intended by the defendants to relate only to the other clause of the agreement by which they were tied up in selling the property during the pendency of the damage suit without notifying the attorneys.

In this connection it is to be noted that the defendants retained the plaintiff’s attorneys as their own. To decide that their delay in bringing and prosecuting the suit beyond the five years shall defeat the plaintiff’s recovery of her damage claim is to hold her responsible for the negligence of the defendants’ agents in a matter in which they were acting as attorneys of the defendants. We are unwilling to construe the agreement in such a manner that the defendants, who authorized a suit to be brought in their names for the plaintiff’s benefit and at her expense, to recover the damages which they stipulated belonged and should continue to belong to the_plaintiff, shall be able to withhold from her the results and fruits of the litigation and appropriate them to their own use, especially in view of the fact that they obtained a reduction of the purchase price of the premises far greater in amount than the sum secured to the plaintiff by the judgment appealed from. We have examined the exceptions contained in the record and find them untenable to reverse a judgment which is in furtherance of manifest justice.

For these reasons the judgment should be affirmed.

All concurred.

Judgment affirmed, with costs. 
      
       The following is the opinion of the court at Special Term:
      McAdam, J.:
      The defendants as vendees of the realty, having authorized the continuance in their name of the equity suit brought by the present plaintiff, the vendor, against the Manhattan -railway, for fee and rental damages, and having permitted the plaintiff and her attorneys to proceed with and try the same and incur expense in its ino sedition, after the expiration of the five years mentioned in the contract, cannot now mend their hold to her prejudice. The defendants treated the contract as a continuing one (3 Add. Cent. [Am. Notes by Abbott & Wood] 1193; Jewell v. Schroeppel, 4 Cow. 564), allowed the plaintiff to act on that assumption and now that the prosecution has terminated favorably, cannot avail themselves of the five-year limitation contained in the contract, and by so doing deprive the plaintiff of the recovery which was intended for her benefit by the terms of said contract which accompanied the sale and formed part of its consideration. The defendants, by refusing to execute the release to the railway company of the easements of air, light and access, prevented the plaintiff from receiving the sum awarded therefor and damnified her to that extent. There must be judgment for the plaintiff. Submit findings. Sixty days’ stay of execution after service, of notice of entry of judgment.
     