City of New York v. . Union News Co. , 222 N.Y. 263 ( 1918 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Section 825 of the Greater New York charter authorizes the commissioner of docks of the city of New York in the name of and for the benefit of the corporation, to lease any or all of the wharf property of the city. In offering the newspaper and other privileges at auction the commissioner followed so far as applicable the provisions of sections 419 and 420 of the charter relating to letting contracts for work and supplies.

The commissioner was not personally present at the sale. The terms of sale were personally signed by him and the auctioneer publicly read them to those present and the sale proceeded thereunder.

It was not until after the bids at the auction were formally closed that it appeared who the highest bidder was, and whom he represented in making the bid. The auctioneer could not, without special and wholly impractical delays from time to time, have determined whether the bids made were by or on behalf of a "delinquent on any former contract with the department of docks and ferries or with the city of New York" or by or on behalf of one in arrears upon debt or contract or a defaulter of surety or otherwise upon any obligation with said department or said city. The terms of sale contemplated a written contract to be entered into between the city of New York, acting through the commissioner of docks, and the highest bidder for the permit and license. No such contract was ever entered into and the facts disclosed by the record do not show as a matter of law that the defendant is entitled to the permit and license for the two years beginning May 1, 1913, at the bid of $15,500 per annum. Under the terms of sale when the auctioneer's "hammer fell" and the bids were declared closed the offer and bid were subject to the right of the commissioner to a reasonable time in which to determine whether he deemed it for the best interests of the city to accept or reject the bid. (Williams v. City of New Rochelle, 118 App. Div. 756-762; affd., 192 N.Y. 541; Molloy v. City of NewRochelle, 198 N.Y. 402; Erving v. Mayor, etc., of N.Y.,131 N.Y. 133.) The compliance by the news company with the conditions on its part to be performed in connection with its bid, did not as a matter of law affect the reserved authority of the commissioner.

The fall of the auctioneer's hammer did not do away with the condition reserved in the terms of sale. His authority was measured by the terms of sale signed by the commissioner. The commissioner of docks had authority to impose reasonable conditions upon the sale. (Dillon on Municipal Corporations [5th ed.], § 995.)

When the bids were closed the defendant's bid or offer was accepted, subject, however, to the exercise by the commissioner of his personal judgment whether the best interests of the city required that he reject the defendant's bid. So far as Brown v.City of New York (57 Misc. Rep. 433) holds to the contrary it is disapproved.

It is claimed by the defendant that the commissioner personally accepted its bid and that when it paid into the department of docks and ferries the twenty-five per cent of its bid the receipt for three months' rent was given to it with the commissioner's approval and pursuant to his direction.

Whether it was reasonable for the commissioner to wait until April 30 or May 1 before determining whether to accept or reject the bid of the defendant and also whether the commissioner personally accepted the defendant's bid, are questions of fact.

This action is brought for rent at $23,000 per annum, and the plaintiff insists that the defendant owes rent as upon a contract for one year from May 1, 1913, upon the same terms and conditions as the contract for the previous year because of its remaining in possession of the permit and license after the end of the first year period without a new or independent agreement relating thereto. Even if the doctrine of holding over applied in cases of landlord and tenant is applicable in any event to the facts and circumstances of this case such claim is not in accord with the letter written by the commissioner to the defendant on May 1. The commissioner as the representative of the city did not therein state that he would treat the defendant as having renewed the permit and license for one year. In the letter the commisioner said: "Permission is hereby granted you to remain over at thepleasure of the commissioner of docks." A permit or license to continue during the pleasure of a department is a permit or license at will. (Brown v. City of New York, 78 App. Div. 361; affd., 176 N.Y. 571.)

It was found by the trial court "That the plaintiff has not elected to treat the defendant as a tenant for a definite term of one year from May 1, 1913," and also, "That the plaintiff and the defendant have abandoned the previous agreement by which the defendant occupied the premises and privileges for one year beginning May 1, 1912, at the annual rental of $23,000." And also, "That the defendant after May 1, 1913, was not holding over after the expiration of its tenancy under the terms of such prior agreement."

The parties have not agreed upon a rental while the defendant is holding as a tenant at will or by sufferance. The defendant is liable to the city for rent at an amount to be determined as the value of the use and occupation of the permit and license.

The plaintiff cannot recover upon the complaint in this action and the trial court was right in directing judgment for the defendant.

The judgment should be affirmed, with costs.

COLLIN, CUDDEBACK, CARDOZO, POUND and CRANE, JJ., concur; ANDREWS, J., concurs in result.

Judgment affirmed.