Sargent v. Vought , 185 N.Y.S. 578 ( 1920 )

Putnam, J.:

We are agreed for a new trial because it did not sufficiently appear that on August thirtieth the lessor did have a bona fide offer, so as to put the plaintiff to his election to purchase for $25,000.

We think that parol evidence of prior conversations was not admissible upon the meaning and import of the term “ first privilege.” (Tracy v. Albany Exchange Co., 7 N. Y. 472.) The term “ first privilege ” of water necessary for running a mill was held to give a right to the water necessary, and not merely to take subject to the valid claims on the stream. (Hapgood v. Brown, 102 Mass. 451.) The majority of the court agree with the learned trial court that this clause gave the lessee a preference if the lessor were to sell for $25,000, but that such option did not survive a bona fide offer followed by his refusal. That if defendant had such an offer for $25,000, and then plaintiff after having been so notified declined to avail himself of this reserved privilege, his option would be gone. Otherwise such preference would in effect tie up the demised property for the entire term. But in order to put the tenant to his option to purchase and so to terminate plaintiff’s right, a real offer at these terms at the date of August 30,1919, must be established.

Therefore, I advise that the judgment be reversed and a new trial granted, with costs to abide the event.

Jenks, "P. J., and Blackmar, J., concur; Kelly, J., concurs for reversal, but is of opinion that the plaintiff tenant had the right to exercise the privilege granted to him to purchase the premises at any time during the term of the lease, with whom Rich, J., concurs.

Judgment reversed and new trial granted, with costs to abide the event.