The plaintiff in this action, having failed to recover on the award, now seeks to recover on a count for use and occupation. The defendant, as appeared at the former hearing, is in occupation under an indenture of lease for five years with covenant for renewals, five years by five years, for seventy-five years longer. It stipulates that the rent after the first five years shall be fixed by appraisal for each succeeding five, and be paid by the lessee as appraised. No appraisal has been made for the current five years. The defendant contends that he is liable for rent only according to the terms of the lease, and offers to join the plaintiff in the appointment of referees to make the appraisal. The plaintiff contends that the attempt already made to fix the rent by arbitration having failed, he is entitled to recover a reasonable rent in his pending action. To this point he cites the following cases: Phippen v. Stickney, 3 Metc. 384, 389; Stose v. Heissler, 8 Western Reporter, 441, 445; Uhrig v. Williamsburg City Fire Insurance Co. 101 N.Y. 362. These cases hold that when a price under a contract to sell, or a rent under a lease, is to be fixed by appraisal, then, if the referees appointed under the contract or lease to make the appraisal are unable to make it, the vendor or lessor will be entitled to sue for a reasonable price or rent. It will be seen that according to these cases the plaintiff's right to sue for a reasonable rent depends upon a condition precedent, namely, his having tried to get the rent fixed in pursuance of the terms of the lease, and failed to do so. The *Page 83 plaintiff contends that he has complied with this condition by joining the defendant in the appointment of arbitrators whose authority the defendant revoked. In our former decision, however, we sustained the revocation on the ground that the appointment was not pursuant to the terms of the lease; for if it had been, the revocation would have been unavailing. We still adhere to that view. For anything that appears, a reference under the lease will be effectual, and we think the defendant, if he is to be regarded as still occupying under the lease, which is not questioned, is entitled to such a reference before he is sued without appraisal for a merely reasonable rent.
Judgment for defendant for costs.