(217 N.Y.S.) It follows, therefore, that there must be judgment for the defendant under rule 112 of the Rules of Civil Practice in that the complaint does not state facts sufficient to constitute a cause of action. The noticę of examination based thereon is vacated. (217 App. Div. 443) RAYNOLDS et al. v. BROWNING, KING & CO. et al. (Supreme Court, Appellate Division, First Department. July 6, 1926.) 1. Trusts 205. In absence of statutory or specific authority in will creating trust, trustee cannot lease for longer than duration of trust estate. 2. Trusts 205. Under Real Property Law, § 106, as amended by Laws 1923, c. 644, trustee, in absence of specific authority in the will creating the trust, must limit term of lease to 5 years, or obtain court order for execution of lease for longer term. 3. Trusts ~205. Any ambiguity in will giving trustee power to lease property must be resolved in light of circumstances existing when will was made, including condition of property. 4. Trusts 205-Will authorizing trustee to lease for period beyond duration of trust, with authority to make proper or necessary covenants, if lease contemplated building operations, held to authorize trustee to lease premises for 21 years, with option to renew for like period. Where will authorized trustee to lease property for term extending beyond duration of trust, and, if lease comprises alteration of building or construction of new one, to execute lease or leases containing such covenants as may be necessary, held that, in view of condition of premises, trustee did not exceed his power in leasing premises for 21 years, with option to renew for like period. 5. Costs 164(3). Action for declaratory judgment, involving validity of lease executed by testamentary trustee, held not difficult and extraordinary, within Civil Practice Act, § 1513, as renumbered by Laws 1921, c. 199, and section 1514, as renumbered by Laws 1921, c. 199, and amended by Laws 1922, c. 219, and, in absence of evidence as to value of subjectmatter, court properly denied successful defendant's application for extra allowance. Appeal from Special Term, New York County. Action by Gustavus W. Raynolds and others against Browning, King & Co. and others. From a declaratory judgment (123 Misc. Rep. 367, 205 N. Y. S. 748), in so far as it declares valid and effective the provisions of a certain lease granting a renewal term of 21 years to For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the defendant named, plaintiffs and defendants other than defendant named appeal; and from an order denying its motion for an extra allowance, on the ground that the action was difficult and extraordinary, defendant named appeals. Affirmed. Argued before CLARKE, P. J., and MERRELL, FINCH, MARTIN, and WAGNER, JJ. Thomas M. Healy, of New York City (Jabish Holmes, of New York City, of counsel) for plaintiffs. Dixon & Holmes, of New York City, for defendants Mary K. Stevens and another. Harry D. Nims, for defendants Popham Hidden and another. Levi S. Hulse, of New York City, for defendant Nicholas Hidden. Harold Swain, of New York City (Arthur H. Indell, of New York City, on the brief), for defendant Title Guarantee & Trust Co. Henry D. Merchant, of New York City, for defendant Henrietta Gardner Cattapani. Eugene Lamb Richards, of New York City (Rutherford B. Meyer, of New York City, of counsel), for defendant Zographos. Clarence E. Thornall, of New York City (Charles P. Northrop, of New York City, of counsel), for defendant Browning, King & Co. FINCH, J. The question presented for decision is whether certain specific powers granted to a testamentary trustee under a will are sufficiently broad to give validity to a lease made by him for 21 years and 6 months, with an election in the tenant to have a further lease for a further term of 21 years following the expiration of the previous term; the further lease to contain covenants, agreements, and conditions identical with those contained in the first lease, except as to certain provisions providing for the ascertaining of what augmentation of rent, if any, should take place during the term of the further lease. In and by the eighth clause of her will, the testatrix devised to her brother, Thomas B. Hidden, and his successors in the trust thereby created, certain premises, in trust to receive the rents, issues, and profits, and, after payment of all charges and expenses, to pay over the net income thereof to the son of the testatrix during his life, and after his death, if his wife should survive him, to pay over the said net income up to the sum of $6,000 annually to the said wife during her life, and the remainder to certain other persons, the trust to terminate at the death of the son and wife. The testatrix, by the eleventh clause of her will, gave to the trustee power to lease the property as follows: "Eleventh. I hereby give, devise and bequeath to Thomas B. Hidden, his successors and successor in the said trust, full power and authority from time to time, and at all times, during the continuance of the said trust in him here (217 N.Y.S.) by created, to sell, mortgage or lease all or any portion of the said trust properties for such sum or sums and for such periods, and upon such terms as he shall deem best for the interests of said trusts and to execute, acknowledge and deliver to the purchaser or purchasers such instruments of conveyance, assignment, mortgage or lease, as shall be requisite and proper for the full execution and carrying out of the power and authority hereby conferred; the proceeds of any such sales or mortgage to be subject to the same trusts as the property from which they are derived. And especially I hereby authorize and empower said Thomas B. Hidden as trustee under the eighth clause of this my will, of said Broadway and Sixth avenue property and his successors and successor, if he or they deem it for the advantage of said trust, to lease the said property for a term extending beyond the duration of said trust, and in connection with said lease, to consent and agree to such alteration of the present building or construction of a new building thereon, by the tenant under such lease, as the said trustee or his successors or successor shall deem for the best interest of the said trust and for this purpose to execute, acknowledge and deliver such lease or leases containing such agreement or agreements as may be necessary and proper for the purpose of carrying into effect the power and authority hereby conferred." Pursuant to this power, the trustee, on the 28th day of October, 1902, entered into a lease of the premises in question with Browning, King & Co., which contained, among others, the following covenant: "Second. If the party of the second part, its successors or assigns, shall during the whole of said term of twenty-one years and six months hereby demised, well and faithfully keep and perform all and singular the covenants and agreements herein contained, on its and their part to be kept and performed, then the party of the first part, his successors and assigns shall and will, if the party of the second part, its successors and assigns, shall so elect, grant a further lease of the said lots hereby demised, to and at the expense of the said party of the second part, its successors or assigns, for a further term of twenty-one years from, and after expiration of the term hereby granted at and for a yearly rental, payable in equal monthly instalments, on the last day of each and every month, to be ascertained as hereinafter provided, and to be in addition to all taxes, assessments and other charges upon said premises which also the lessees are to covenant to pay; such lease to contain the like covenants, agreements and conditions as are herein contained, except as to any further renewal or extension of the term thereby granted. "And it is mutually covenanted and agreed, by and between the parties to these presents, that in order to ascertain what augmentation of rent, if any, should take place in granting any such further lease, the amount of such rent shall be ascertained as follows; that is to say: The said parties, their successors or assigns, shall each nominate one fit and impartial person to determine the full and fair worth of said lots of land at private sale, which nomination shall be made and signified by each party to the other at least six months before the expiration of the terms of twenty-one years and six months hereby demised, and in default of such nomination by either party for the space of fifteen days after the time above limited for the making of the same, the person who shall have been so nominated by the other party shall appoint and associate with himself one other fit and impartial person for the purposes aforesaid, and if the two persons to be so nominated or appointed shall differ in judgment thereon, they shall appoint a fit and impartial person to be umpire between them, if they can agree upon such person, or if they cannot so 217 N.Y.S.-2 agree, then each of them shall nominate two fit and impartial persons, and from the names of the four persons so nominated, that of one shall be drawn by ballot, who shall be umpire, and the decision of such two persons, or, in case of their disagreement, of the said umpire, as to the value of said lots, shall in all cases be final and conclusive, and the rent to be reserved therein for such further term shall be estimated for the lots alone, without any buildings thereon and four and one-half per cent. on such estimated value of said lots shall be the annual rent to be reserved in the new lease during the further term to be granted." The testatrix's son died in 1919, and his widow died in 1922, whereupon the trust estate terminated. On February 27, 1923, Browning, King & Co. gave notice of their election to extend the lease for 21 years from May 1, 1924. The owners of the fee having declined to proceed, Browning, King & Co. appointed arbitrators to determine the rent, which proceeding has been enjoined pending the decision of this action. [1] At the outset it is or should be conceded that, in the absence of statutory authority or specific authority in the will which created the trust, the trustee has no authority to lease for longer than the duration of the trust estate. In Weir v. Barker, 104 App. Div. 112, 115, 93 N. Y. S. 732, 734, the court, through Mr. Justice Miller, said: "It was undoubtedly the settled law of this state at the time of the original passage of the act in question in 1895 that such lease was not binding on remaindermen, but was valid only for a period ending with the trust term. [2] Section 106 of the Real Property Law (as amended by Laws 1923, c. 644) provides that a trustee may lease for not exceeding five years without obtaining the approval of the court, even though this term may extend beyond the duration of the trust estate, and said section has been so construed: 66 The statute must be construed to mean that a trustee who would make a lease must limit the term to five years or obtain the court's order for the execution of a lease of a longer term." Thirty-Nine Cortlandt Street Corporation v. Lambert, 209 App. Div. 575, at page 580, 205 N. Y. S. 161, 164. [3] As the lease in the case at bar amounts to 42 years and 6 months, and as no application was made by the trustee to the court, we must turn to the will to find authority for the trustee to make the lease. This authority is contained in the eleventh subdivision of the will, which subdivision, so far as material, has already been set forth herein. Any ambiguity of language in the will must be resolved "in the light of the circumstances existing at the time it was made, including the conditions of his property." Andrews, J., in Furniss v. Cruikshank, 230 N. Y. 495, at page 503, 130 N. E. 625, 627. (217 N.Y.S.) [4] At the time the will was made, the premises in question appear to have been in a very dilapidated condition. On Broadway there were three old four-story brick buildings, in which there was no heating plant. There were places cut in the walls, where the flues to the chimney had probably made possible attachments of smoke pipes from coal stoves. The stoves, however, appeared to have been removed. The only means of obtaining heat was apparently from rubber tubes. attached to the gas fixtures and connected with gas heaters. The plaster was falling from the ceiling and walls, the boards on the floors. were worn and loose in places, the staircase was pulling away from the wall, and was loose, dilapidated, and very weak, the balusters were missing from the balustrade, the railing on the second floor was loose and wabbly, the roof was a very old one, of tar and gravel, and was in very bad shape, and there were many evidences of leaks from rain on the roof. On the Sixth avenue side the buildings were four stories, and were of the same construction as those on Broadway. The interior of these buildings was practically in the same condition, "plaster falling down, no evidence of heating, the cellars were very shallow, in some places less than 6 feet, and the cellar floor, instead of being of concrete, in many places was nothing but mere dirt floor, showing evidences of the former concrete floor having been torn up and the buildings left in that condition. The roof of those buildings was the same as the other." There was no elevator in the building, nor any toilet other than in the cellar, and there were practically no improvements at all in the property. At the time of this condition there were many vacancies and few tenants. The net income from all these buildings was somewhere between $2,000 and $5,000 a year, and never more than the latter sum. By means of this lease a net rental was reserved at once of $35,000, which brought in this net amount to this estate, less the mortgage interest of $4,000. In the light of these circumstances, we are thus brought to the real question in the case, namely: What was the specific authority given by the will? By the first paragraph of the eleventh subdivision the trustee is given, among other things, full power and authority to lease this property during the continuance of the trust; second, the trustee is especially authorized and empowered to lease the land in question for a term extending beyond the duration of the trust, without regard to the building; and, third, he is given the authority, if the lease which he makes comprises the alteration of the present building or the construction of a new building, to execute, acknowledge, and deliver such lease or leases containing such covenants or agreements as may be necessary and proper for this purpose. The argument of the appellants seeks to limit the authority granted to the first two powers above outlined, and to limit the second power; in other words, to lease the property and to lease the same for a single |