Pennsylvania Coal Co. v. Delaware, &c. Canal Co.

ble to fix the toll to be charged and collected according to this contract, until these sales are made, if not until the end of the year. Certainly it was impossible to fix the toll for the year in which this suit was brought at the time when it was commenced. We must, therefore, inquire whether, although the amount or rate of toll cannot be determined, yet the defendants may exact a charge estimated to be approximately or very nearly what the tolls will be under the contract, before allowing the plaintiffs' boats to pass through the canal. In my judgment the contract does not authorize any such course; it authorizes the defendants to charge and collect certain tolls whenever they are due, and it furnishes the means of settling their amount. But it does not authorize the charge or the collection of any other sums or amounts than these specific tolls. If the amount of the tolls were left at large or to the discretion of the canal company, subject to review or correction, or to drawbacks and deductions afterward, the case would be widely different. But this contract does not provide merely for the payment of a toll to be reasonable in amount, or to an amount to be set by the canal company but not to be unreasonable. It provides for the ascertaining and fixing that toll in a specified manner. It is silent as to the time and mode of payment, and it follows that the toll or compensation for the use of the defendants' property is due when the property is used, and the amount of compensation ascertained, by the rule of the contract. An uncertainty as to the amount of toll at the time of using the canal, certainly would not avoid the contract, but since the contract contains the means of arriving at certainty as to the payment for which it calls, such payment cannot be compelled until the required return can be made certain by those means.

The clause requiring a reduction of the tolls in case a deduction or discount is made from the price established by the sales or contracts made before May 1, does not militate against this construction. In some cases these deductions are or can be ascertained with the tolls. The contract speaks of discount or deduction agreed upon or contemplated in the contracts for sale. Even if the discount be contingent, yet the contingencies may occur as or before the tolls became demandable. If

Pennsylvania Coal Co. v. Delaware, &c. Canal Co.

not, however, still the charge is fixed and declared in the first instance. It is certain at the time when the right to it accrues, even if the defendants are liable to be called upon to make a deduction from it afterward. It is not left uncertain and indefinite until the contingency occurs upon which the plaintiffs are entitled to a reduction or return.

Here, as in the other part of the argument, the main reliance of the defendants is upon the word charging and collecting tolls. I cannot, however, read these words as meaning charging and collecting compensation for the use of the canal according to the discretion of its owners, until the toll which they are really authorized to exact can be ascertainnd.

Even if the word toll, in its proper sense and use, implied immediate payment, yet, as I have already said, the manner in which it is used in this contract would control that sense, and give to it a different meaning. A word, ordinarily meaning a sum payable immediately, when used in a connection which involves delay in determining the same, and, hence, in the time of its payment, must acquire a modified sense.

It cannot be construed with such technical exactness as to do violence to the rest of the agreement in which it occurs.

It will be observed that the agreement in question, under the construction which has now been placed upon it, does not give to the Pennsylvania Coal Company the option of deferring the payment of all tolls until the end of the year. It is not when they, but when the Delaware & Hudson Canal Company have not made sales before May 1 in any year to the amount of half their estimated production for the year, that the average of actual sales and not of contracts is made the basis of tolls. It is evident from the case, and is well known to those familiar with the trade, that the manner of conducting it is by sales contracted to be made in anticipation of the products of the mines, and in large quantities deliverable through the year. If such contracts are not or cannot be made to any considerable extent, it indicates a dull or diminished demand, or an unsettled market. This would affect both companies alike. The plaintiffs obtain no modification of the terms of the contract in consequence of it, until the defendants have ascertained that their business must yield to such a state of things.

People ex rel. Clute v. Boardman.

The basis upon which the defendants are to be paid for the use of their canal, is evidently intended to be the price of coal for the current season. That price may be determined by their own cales and contracts; but when prices are so uncertain, or the market so dull, that it cannot, as is usual, be set for the season by contracts in advance, it is not unjust to compel both these parties to submit to the consequences. The defendants will not omit to make early sales in advance according to the common custom of the trade, unless for controlling reasons, such as either the insufficiency of the demand, or the insufficiency of the price at the opening of the season. In either event, if necessity, or a regard for their own interests, prevents the defendants from making their ordinary sales, and so fixing the standard of tolls in any year, the same controlling cause will involve a postponement of the payment of their tolls. The determination of the time of payment is not in truth committed to either party, but is left to events beyond the control of either.

I am of opinion that the interpretation of this contract adopted by the court below on the last trial of this case, was correct, and that the judgment should be affirmed, with costs.

All the judges concurred, except DAVIES and WRIGHT, JJ., not voting.

Judgment affirmed, with costs.

PEOPLE ex rel. CLUTE v. BOARDMAN.

December, 1868.

Under 2 L. 1868, p. 1930, c. 868, § 6, the determination of the supreme court, on certiorari to a justice's court, to review summary proceedings to dispossess a tenant, may be reviewed in this court by appeal. A judgment of dispossession in such proceedings cannot be sustained on an affidavit of service of the summons, which does not show service made on or after the day on which the summons was issued, and at least one day before the time for appearance. Error in the alleged date of service in this respect, cannot be disregarded as a clerical mistake.

People ex rel. Clute v. Boardman.

It is also essential that an affidavit of substituted service should show that the place of service was the last or usual place of residence of the tenant served.

Charles E. Boardman and others instituted summary proeeedings, before the city judge of New York, against Garrett M. Clute and others, their tenants, to dispossess them from the demised premises, the Neptune Iron Works, for holding over after the alleged expiration of their term.

On the return of the summons no one appeared for the defendants, and a warrant of dispossession was issued.

The supreme court, on a writ of certiorari brought by defendants in the name of the people, reviewed the proceedings, and affirmed them, and the relators appealed.

Mr. Higgins, for the relator, appellant.

Mr. Williams, for the respondents.

MASON, J.-This matter comes before this court on appeal from the judgment of the supreme court, rendered upon the return to that court to a writ of certiorari, brought to review summary proceedings had before the city judge of the city of New York, under the landlord and tenant act. The proceedings were affirmed, and the relator appealed therefrom to this court. The point is taken in limine, that an appeal to this court will not lie in such a case. Section 11 of the Code provides, that the court of appeals shall have exclusive jurisdiction to review, upon appeal, every actual determination made at the general terin of the supreme court, in a final order affecting a substantial right in a special proceeding. This seems very clearly to embrace the case. It certainly does, if these summary proceedings to remove a tenant are to be regarded as a special proceeding under the Code.* The opinion was expressed by Judge DENIO, in passing, in delivering the opinion of the court in the Matter of Dodd, 27 N. Y. 629, 632, that to be a special proceeding, in the sense of the Code,

*Cited on this point in Rensselaer & Sar. R. R. Co. v. Davis, 43 N. Y. 137; Matter of Long Island R. R. Co., 45 Id. 364. Compare Matter of Central Park, 50 Id. 493.

People ex rel. Clute v. Boardmтn.

there must be a litigation in a court of justice,-citing section 1 of the Code.

This section, in defining remedies, seems to give some countenance to such a construction. It says: "Remedies in courts of justice are divided into actions and special proceedings." This narrow construction would allow no special proceeding, instituted before a judicial officer out of court, to be regarded a special proceeding under the Code, and, consequently, this section 11, providing for appeals, would not reach such cases.

The same view was taken by Judge MARVIN, of the supreme court, in People ex rel. Harvey v. Heath, 20 How. Pr. 304. The Code is entitled, "An act to supply and abridge the practice, pleadings and proceedings of the courts of this State," and is, upon the plainest construction, limited to proceedings in the courts.

The proceedings, after they come into the supreme court, are to be regarded as a special proceeding in that court, and so when the proceedings are brought into this court. Suppose, in the case before us, the decision of the city judge had decided against the landlords, and they had removed the proceedings into the supreme court, would they not have been seeking a remedy in that court in a special proceeding? And suppose, again, they had been beaten in the supreme court, and had appealed to this court, would they not have been seeking a remedy in a special proceeding in this court? The case is not different that these appeals have been taken by the relator, for the respondents are seeking their remedy by the resistance they make to this appeal.

It is not necessary to discuss the question, and I will only add that I have looked carefully into the adjudged cases, and find that this distinction made by Judge DENIO and Judge MARVIN does not seem to have been observed by judges generally, and there is no reason for placing so limited a construction upon this first section of the Code. The general understanding, I think, has been different, and there is a clear legislative intimation in chapter 828 of the Laws of 1868, section 6, that an appeal to this court, in just such a case as this, was authorized as a matter of right before the passage of that act. The preceding section declares, that the judgment