
    THE MAYOR, &c., of N. Y., Respondent, v. THOMAS COOPER, Appellant.
    
      Contract for sale of docle property—construction of terms of sale —repairs to he made in discretion of commissioners.
    
    C. purchased of the Mayor, &c., of the City of New York, the right to use for a term of years a certain pier for wharfage purposes, etc., which sale-was made expressly subject to the published terms of sale, applying also-to rights in other dock property sold at the same time, and which contained the following provisions : “ The Department will make, either prior to the commencement of the lease in each case, or as soon thereafter as practicable, such repairs to any of the above-named premises in the judgment of the commissioners needing them, as they may consider necessary to place the premises in suitable condition for service during the term for which leases are sold ; but all the premises must be taken in the condition in which they may be on the date of commencement of lease, and no claim that the property is not in suitable condition at the commencement of the lease will be allowed by the Department No claim will be received or considered by the Department for loss of wharfage, or otherwise, consequent upon any delay in doing the work of repairing, or consequent upon the premises being occupied for repairing purposes.”
    In an action by the Mayor, &c., for rent falling due about a year thereafter, C. interposed a counter-claim for damages for failure to repair, etc., which the court refused to entertain, substantially, on the ground that there could be no recovery thereon, holding that evidence of the condition of the pier at the time of"the commencement of the lease was immaterial.
    
      Held, error that the above provisions in the terms of sale constituted a contract, under which the commissioners were bound to form a judgment,, which need not he oral or quasi-judicial, as to whether the pier in question was in need of repairs ; that whether or not, this judgment was formed could be shown by circumstantial evidence including the force of legal presumptions, and evidence that the pier was in a plainly dilapidated condition, was of this character and therefore admissible.
    
      Further held, that the discretion of the commissioners as to the extent of the repairs to be made in each case was not absolute.
    
      Further held, that the clauses providing that no claim that the property is not in suitable condition at the commencement of the lease, nor for loss-on account of “ any delay” in making repairs, will be allowed, do not prevent a recovery herein.
    
      Before Sedgwick, Ch. J., Freedman, and O’Gorman, JJ.
    
      Decided December 17, 1883.
    Appeal by defendant, from judgment' in favor of plaintiffs, on verdict for plaintiffs, directed by the court at trial ■term.
    The complaint alleged that the plaintiffs sold to the defendant the right to go into possession and use for wharf purpose the pier No. 60, and to collect the wharfage of the. pier for three years, for which the defendant promised to pay quarter-yearly $687.50, and demanded judgment for one such amount that had not been paid. The sale was made in March, 1881, and. the sum demanded was for the quarter from November 1, 1882, to February 1, 1883.
    On the trial it was virtually admitted that, the sum claimed in the complaint was due, but the defendant claimed that the plaintiffs had committed a breach of agreement on their part for which the defendant was entitled to recover damages in the sum of $2,000, by way of counter claim. The facts as to this were as follows : The purchase by defendant was expressly made subject to the terms and conditions set forth in the published notice of sale. This notice was for a sale of rights as to several piers. The sale •was made by the Commissioner of Docks. The terms and conditions of the sale were, “The department will make, either prior to the commencement of the term of the lease, in each case, or as soon thereafter as practicable, such repairs to any of the above named premises, in the judgment of the'commissioners needing them, as they may consider necessary to place the premises in suitable condition for service during the terms, for which leases are to be sold; but all the premises must be taken in the' condition, in which they may be on the date of said terms respectively: and no claim that the property is not in suitable condition, at the commencement of the lease, will be allowed by the «departments, and all repairs and rebuilding required and necessary to the premises during its term of lease, are to be done at the expense and cost of the lessee.
    
      “No claim will be received or considered by the department for loss of wharfage, or otherwise, consequent upon any delay, in doing the work of repairing ... or consequent upon the premises being occupied for repairing purposes.”
    The defendant asked several questions as to the condition of the pier at the beginning of the term, as to its being dilapidated at that time, and unfit for the use contemplated, and as to its being in a suitable condition for service. These questions upon plaintiff’s objection, were held to be irrelevant and immaterial, on the ground that it was immaterial what the condition of the pier was at the beginning ; that there was no absolute covenant to repair ; that it would be, under the counter-claim, necessary to show that in the judgment of the commissioners, the premises were out of repair ; and that a clause expressly provided that no claim should be made because of delay. The substance of the objection was, that, under no circumstances, could there be a recovery under the counter-claim. Exceptions were duly taken by the defendant. The defendant further offered to show the amount of loss sustained from the pier not being repaired. This was overruled under objection.
    The court thereupon directed a verdict for the plaintiffs in the amount claimed by them.
    
      James M. Fisk. for appellant.
    —It was error to hold as matter of law, that defendant could not recover because of the agreement that no claim for damages by reason of delay should be made. The grant being one made by a municipal corporation for valuable considerations received, is to be construed strictly against the grantor. For principle by which such grants are to be construed, see Langdon v. The Mayor (93 N. Y. 129).
    Considering the clauses in the terms of sale, what is the meaning of the same \ First, there is the absolute promise on the part of the plaintiff, that “ the Department will make such repairs.”
    
      This is an absolute representation to intending purchasers, that for the consideration of the rent to be paid, the wharfs will be put in such a condition as will enable the purchasers to use them. If any other construction prevails, there is no mutuality of contract; the grantee is bound to pay rent, but 'the grantor is free to do as he pleases. The clause, to the effect that “no claim that the property is not in suitable condition at the commencement of the lease will be allowed by the Department,” evidently means any claim for a reduction of rent, not for damages. There is nothing in the clauses which prevents the defendant from asking a court of law from considering or allowing it.
    Again, it might.be naturally construed as meaning that no claim will be considered or allowed in consequence of delay in repairing after the work of repairing had actually begun.
    The defendant having taken the agreement prepared' by another, and having upon its faith parted with value, should have a construction given to the instrument favorable to himself, and when the instrument is susceptible of two constructions, the one working injustice and the other consistent with the right of the case—that one should be favored which upholds the right (Noonan v. Bradley, 9 Wall. [U. S.] 395-407; Barney v. Newcomb, 9 Cush. [Mass.] 46). The intent exempting a party from liability must be plainly and distinctly expressed so that it cannot be misunderstood, it cannot be inferred from general words in the contract (Nicholas v. N. Y. C. H. R. R. R. Co., 89 N. Y. 370).
    
      George P. Andrews, corporation attorney, and E. Henry Lacomb, for respondents.
   By the Court.— Sedgwick, Ch. J.

—The terms of sale were made in general phrases, to be applied to the cases of several piers, in different states of needing or not needing repairs. They constituted a contract, virtually upon condition. The department agreed to make repairs to any of the premises, if it was the judgment of the commissioners that the premises needed the repairs. Again, if the commissioners considered that a certain amount or kind of repairs was necessary to place the premises in suitable condition for service during the term, then, in such case, the department agreed to make that amount or kind of repairs. The terms should not be so construed, unless there is no escape therefrom, as to lead to the conclusion that there was no contract of any kind. The fact that the parties used the promissory terms at all implies that they meant them to have some purpose. At the very least, a proper construction will not enlarge the ordinary meaning of words used, or supply new words, when the effect would be to declare that no contract was made, while with the words actually used according to their ordinary meaning, there would be a contract. Such a rule is implied in the decision of Danolds v. State (89 N. Y. 36), while in cases that involve the same fundamental principle, general phrases may be restrained (Nicholas v. N. Y. C. & H. R. R. Co., 89 ld. 370).

Ye inquire then, what does the first condition mean 2 If the ordinary meaning be taken, if no words are supplied, it does not say or intend, that there shall be an oral or quasi judicial declaration of what is the judgment of the commissioners as to this pier needing repairs or that pier not needing them, for instance a resolution. If the commissioners proceeded to repair a pier, it would be competent to order the repairs, without explicitly declaring that the repairs were needed, although they might not be authorized to do it, if the fact were that repairs were not needed. And in this particular contract, the judgment of the commissioners was to be applied only to the perception of which of the piers, included in the terms of sale needed, or which did not need repairs. In the nature of "things, the judgment would consist in seeing in what state the various piers were, whether some were unfit for use without repair and some were fit, and thus being conscious of what the facts were, it would be the action of the mind of the individual commissioners which would precede any action of the board that might order the repairs, when the pier was not in a fit state.

Undoubtedly, if the conditions according to its proper meaning could be shown by evidence to have been fulfilled, the contract should be enforced. This was within the range and possibility of proof. The construction of the contract does not require that the proof should be direct. It may be circumstantial, including the force of legal presumptions.

These circumstances were in the case: The commissioners,-had knowledge of what should be the state of a pier. The law imposed certain duties in respect of that,. and when they sold the piers, they were presumed to know the particular condition of each. Furthermore, I take it, they were bound by their contract to look at the pier, observe its condition, make a judgment as it is called, in respect of it, and a contract to do that is implied. To this case, the decision in New England Iron Co. v. Gilbert Elevated R. R. Co. (91 N. Y. 153) is applicable, the facts here being much stronger for the implication. Now, if the defendant- had been allowed to prove that the pier was so dilapidated that the need of repairs was plainly apparent, there would have been sufficient to sustain a conclusion, if such were draw n, that as a matter of fact, the judgment of each commissioner was that this particular pier, was one that needed repairs.

Much that has been said is pertinent to the construction of what has been described as the second condition. By the first, a case might have been made out that the commissioners should make repairs. The second condition regulated their amount or kind. They were to be such as the commissioner should consider necessary to place the premises in suitable condition for service during the term of three years. The commissioners being bound to begin, the defendant was entitled to have such as the commissioners should think necessary. It was within the range of proof that certain repairs must in any event have been deemed necessary. There was a standard for that to a certain extent. It would be possible to show that up to a certain-point, it was impossible that any one having skill and knowledge, should consider that repairs were not necessary. I suppose that the commissioners could not maintain the position, that the “ consideration” referred to was such as a man might make in refraining to give his skill and attention to the matter, or by a perverted or unjust use of liisfaculties. In the present instance the commissioners not having proceeded to make any repairs, it would be impossible to show what kind of repairs they had in fact considered necessary. It was not necessary to show this. If the commissioners had begun to repair, as was their duty, the defendant would have had the advantage of such repair as the commissioners deemed necessary. An entire breach of the contract had deprived the defendants of this advantage. Although he would have to prove what kind of repairs he would have been entitled to, his right to do this is not destroyed by a supposition that the commissioners could have given no consideration to the matter. They were bound to give it, and indeed having ordered any repairs at all, would have been forced to give it. The contract is not susceptible of the construction that the commissioners might have, or would have had, the right to have not considered the matter at all.

Another clause, it was argued, prevented defendant’s recovery under his cou nter-claim. This was ‘ ‘ that no claim that the property is not in suitable condition at the commencement of the lease, will be allowed by the department.” The defendant did not make such a claim in this action. The terms of sale permitted the department to refrain from making repairs before the term began, and the-claim was that it was bound to make them as soon as practicable, after the term began. Proof of the condition of the pier at the beginning was relevant, as to what repairs, after the beginning would be considered necessary. Another remark as to this clause will be made in considering another clause, interposed against the defendant. It was that no claim will be received or considered by the department for loss of wharfage, or otherwise, consequent upon delay in doing the work of repairing.

Under the rule that has been already given, no words should be added to such provisions. And the words that no claim will be allowed or received or considered by the department will not extend to the making of the claim by action. The words “ any delay in doing the work of repairing,” will not comprehend the case of not doing the work at all.

. Sustaining the objection that the fact of the pier being dilapidated was irrelevant and immaterial, prevented the defendants proceeding to prove other facts, and other questions which are in the case, especially as to the measure of damages, could not be raised on the trial or on this appeal. The decision now is confined to whether the defendant could have an action under the agreement and whether the evidence rejected was relevant.

I am of opinion that the judgment should be reversed and a new trial ordered, with costs of the appeal to abide the event.

Freedman and O’Gorman, JJ., concurred.  