Hills v. Melenbacher , 23 A.D.2d 803 ( 1965 )

Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event. Memorandum: In this action to recover damages for breach of a lease of grain storage space and processing machinery which did not fix the term of the demise, the court submitted the case to the jury upon the theory that the jury might supply the missing term of the lease in accordance with the custom in the trade. There was no competent evidence of any relevant custom in the trade. The verdict is, therefore, unsupported by the evidence and for that reason the judgment should be reversed and a new trial granted. The lease is in legal effect a demise for a reasonable time. (Murray Co. v. Lidgerwood Mfg. Co., 241 N. Y. 455, 457, 459; Eppens, Smith & Wiemann Co. v. Littlejohn, 164 N. Y. 187; Papaioannou v. Britz, 285 App. Div. 596, 600; 4 Williston, Contracts [3d ed.], § 575, pp. 79, 80; 2 New York Law of Contracts, § 850, p. 1270.) What constitutes a reasonable time is a question to be determined by the jury taking into consideration the subject matter of the contract, 'the situation ¡of the parties, their intention, what they contemplated at the time the contract was made and the circumstances attending the performance of it. (Murray v. Lidgerwood Mfg. Co., supra, p. 459; 2 New York Law of Contracts, § 853; 17 Am. Jur. 2d, Contracts, § 330.) (Appeal from judgment of Livingston Trial Term for plaintiff in an action for damages for breach of contract.) Present — Williams, P. J., Goldman, Henry, Noonan and Del Veechio, JJ.