James Sharkey, Appellant, v. Patrick B. Larkin, Respondent

James Sharkey, Appellant, v. Patrick B. Larkin, Respondent. (Submitted December 24, 1872; decided January 21, 1873.) ' This was an action for the specific performance of the following agreement contained in a lease of two lots of land, in the city of Brooklyn: “ And it is further covenanted and agreed that at the expiration of said term the said party of the second part (plaintiff), if he chooses so to do, may purchase and take title to said land and premises, at a sum or consideration to be determined by the value of the surrounding or opposite land, or may renew this lease for a further .period of three years at a yearly rent or value to be also determined by the rent then being paid for the surrounding or opposite land and premises. It being hereby understood that if there shall be no sales or sale of the surrounding or opposite property during said term by which to aid such sales or sale, if any, shall determine the value of the land hereby leased, that then the privilege to purchase aforesaid shall cease, and be null and canceled', but the privilege to renew as above set forth shall continue.” During the term plaintiff purchased five lots in the same block at prices varying from $500 to $650, one adjoining the lots in question for $600, another in the rear fronting on another street for $550. Plaintiff claimed that the price of these lots fixed the price to be paid under the contract, and having notified defendant of his election to purchase, upon the latter’s refusing to, convey, brought the action, jHeld, that the intent of the parties was that plaintiff should have the option to purchase at the end of the term at' the then value of the lots, to be ascertained by referring to sales made in the vicinity, and by considering their relative value.compared with lots sold; that it was not the intent to bind defendant by the price paid for other lots without regarding their relative value as compared with those in question; that as plaintiff had not offered to purchase and pay a price ascertained in this view of the contract, he was not entitled to judgment. . The exceptions did not raise the question whether a specific performance could be had of a contract like this,' where no provision was made for determining with certainty the price to be paid, but where it was left to be arrived at by a judicial determination, based upon proof of a variety of facts and upon judgments of men which might greatly differ; the court therefore declined to pass upon it, although expressing strong doubts. Samuel Garrison for the appellant. F. J. Fithian for the respondent. [MAJORITY — Gtbover, J.,] Gtbover, J., reads for affirmance. All concur. Judgment affirmed.