Howell v. Long Island Railroad , 44 N.Y. Sup. Ct. 381 ( 1885 )

BarNArd, P. J.:

■The question of the substantial performance of the contract in question depends upon two things. The plaintiffs’ predecessors in title owned a large tract of land about three miles from Hunter’s Point, upon the Long Island Raih-oad. ■ There was a station a mile ■away, at Whinfield. To obtain daily facilities to get to and from this land, a deed was given to the Long Island Railroad Company, and the company accepted the deed with the condition that there should be a passenger station built on the lot, and that at least two trains each way should daily stop thereat for passengers, and that if the company failed to maintain the station the land should revert, and this was “ under the penalty of three thousand five hundred dollars, which is hereby agreed between the parties as the liquidated damages for the substantial non-performance of this contract.” Under this deed the defendant took possession of the land, and built the passenger depot and literally fulfilled the contract for a time, and then ceased to do so. The defendant’s road extends from Long Island City to Greenpoint, on Long Island sound, in Suffolk county, with numerous and extensive lateral connections. Among other roads operated by it was the Flushing and Woodside Railroad, which extended from Long Island City to White Stone. This road runs through or near the lands of the plaintiffs, and had a station about 1,000 feet from the old station. The defendant ceased to stop at the old station on its road and stopped its trains at the other station on the leased road, and a far greater number of trains daily than was called for by the contract with the plaintiff. Is the station not upon the land, but so near that it fairly, accommodates all persons who do or can live upon the plaintiffs’ land a substantial performance of the covenant while kept as it is? Is such maintenance of a station under the circumstances of this case a substantial performance of the covenant with the plaintiffs, even if the station does equally well accommodate passengers to and from New York?

The answer to each question should be- adverse to the defendant.. The covenant applied t^¡ the plaintiffs’ land and can be performed in no other place fully. The defendant’s road, with which the contract was made, was a road of very much greater scope and significance than the short road. To go from the new station by this road east, the traveler must first go to Hunter’s Point, a distance of three miles, and then again start by the defendant’s road. There is some proof in the case that the old station is for the special advantage of the plaintiffs’ lands as against the new station. The parties had the right to contract to suit themselves, and a court should give proper weight to that fact. Finally, the defendant is not bound to the plaintiff to keep even the new station at all for any given time. It is for its interest to do so at present, but it may move it or discontinue it. A covenant with the plaintiff is not answered by a performance in another place and with no guaranty of continuance. It seems to me, therefore, that there is not only no substantial performance but a complete non-performance as to this covenant. The case does not fall within the cases cited. Generally, these cases arise in actions upon contracts for building and like contracts. If the performance is substantial and the defect can be made good with money, the action is upheld and justice done by compensation for defects. (Heckmann v. Pinkney, 81 N. Y., 211; Woodward v. Fuller, 80 id., 312, and Nolan v. Whitney, 88 id., 648, are such cases.) If this covenant had fallen short in size or cost of station or m time of construction, it might have presented a case to be tried as substantially performed. The land is surrendered and all liability to keep a station on it is abandoned.

Upon the question of whether the covenant was one for a penalty or was designed to liquidate the damages, this is the difficulty experienced in all cases of this hind. The use of the word penalty does not necessarily make it a penalty, and the use of the words liquidated damages does not conclusively establish that it was not a penalty created by the covenant. In this case, both words are used, and the case must be determined by the surroundings of the contract and by the evidence. The failure which constituted the basis of damages was single, and actual damage would be hard to prove. The Court of Appeals give weight to this consideration in Little v. Banks (85 N. Y., 258). Under this case, I think this covenant was intended to, and did, make a sum which was to be deemed the actual damage for a breach. The proof, hyp we ver, fully supports the finding that damage was actually suffered in excess of the sum named in the covenant. The plaintiffs’ lands are shown to have depreciated nearly or quite half in value, by reason of the removal of the station. While this is disputed by the defendant’s witnesses, there is no reason why an appellate court should disagree with the finding.

J udgment affirmed, with costs.

DyKmaN and Pratt, JJ., concurred.

Part of judgment appealed from affirmed, with costs.