The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-08-01
Superior Court-speeiai Term.
Before Hon. Judge Boeworth.
DECISION AZ

DECISION As TO EXTRA ALLOWANCES.
JurY A.--Hamitton Flh a0t joel s. 0dtman, dc -rhis
action brought by the plaintiff upon lease Of pro.
perty on Third avenue, this city, which expired in Feb
ruary 1851 containing covenant that the landlord would
renew the same for twenty one years AZ rent 70 be
tusy agreed uron; and the parties could not agree
upon the rent Tor further that then they should
each, month before the expiration Of the term .p-
point disnleresed appraiser 70 value tne promises and
nx Inc rcn for further term me tefentAnt
appointed an appraiser who was 90 ecei 70 by he ola
hf, on the ground tnat ne 1ad lease ~pt
property, 70 be renewed II the sam. time by the painful
ard the refore could not be dsrterested person me
plaintiff refused 10 accept him. the defesda1t refused
" appoint another In the complaint the plaintiff demand
ed that the Count declare the sad appointment void and
nx the rent for further term aud sadge the defendant
10 execute OF lease Of the
premises 70 the panld The Court held tina, the POINT
fixed tho rent Tor a iuriber term, and decrsed
that the defcndsn, shoald t~euty days execute .
perry 20 she plopua Tecn TIE sdus,mens Of ne ess
In the action, the plaintiff claimed allowance OF
~ s =. ars ue scor vo zoe ~, Wv
ton Of instrument OF writing which item wAs 81
lowed by the Clerk, and taxed in the bill OF costs me
defendant appealed from The adjustment and the Court
reversed the same, directing the allowance 70 DO
stricken out.
BoswoRrn. J-R this ac,ioa s one Of those named IN
the Code was tho duty Of the cerk make allow
ance 70 the plaintiff Whether shoud or should noe
be made BY me clerk Is not matter resting IN his DIS
erection. The plaintiff entitled 10 Il absolutely he's no
rsht whatever 70 IT, as the action not Of bese
named In section sos. One view hat TIN may properly
be called an acfion TOR an afudfcston upon On oetru
mens In writing" whetherth plaintiff entitled 70 have
lease cancelled by Of the refusal Of The defend
ant W appoint dsnterested appraiser or must give
wed and the latter, whether the amount Of
10 be paid 70 be determined by the Oourt By
referees appraisers 10 be appointed by the Court,
questions which may arise upon such lnstrumeaa
But this view is open 10 the objection that the
words "for 81 judcason acon' Of equfvaent i'm
port the words fo the construction o." THAI when
the Court not sshed 70 oenssrue the meaning Of ne IN
suument and determine upon opposing constructions.
the action Ia not "for An ndjusicaton uppn a., any
more than upon note, bond special contract 70 re-
section $685. Mr.. Justice Hoffman has decided 70 be the
correct one tCode, edition OF 1857, D. 444 note CT
Under such circumstances I should no decide 70 The
contrary unless entirely clear that the deciion erro
neous nav be said OF his decision that section sos
prior 70 s amendment In 1885, used the words FOR the
construction Of" The language s, for adudcs-
ton upon There must have been some des IN making
this amendment. Nothing has been effected by n sec
ton 5Os, ~ amended, 70 be held 10 mean 10 n re-
spect PRECISELY What a did before the amendment I
OBSERVE however that Judge woodruff nmses that The
action "a not one q those named In section ses unless
"a proceeding 10 compel the determination Of claims 10
real properly" DO not think such aproceedns within
the meaning Of that section Concurrins the inmsnon
OF Judge woodruff, and not deeming - oy sny means
clear that Judge Hoffman decision 70 ncorrect, deem
more appropriate 70 conform 10 The deliberate aecscn
the latter until has been reviewed BY nesenerh rrin
The allowance OF sixty dollars made ~ the eiers mao
stricken out