Joseph Martin, Jr. Delicatessen v. Schumacher

Court of Appeals of New York, 1981.

52 N.Y.2d 105, 436 N.Y.S.2d 247, 417 N.E.2d 541.

Dawson, pp. 346-349


Facts: The deli was renting a storefront.  There was a renewal clause that said that the tenant could renew for five more years at rates “to be agreed upon”.  The tenant wanted to renew, but didn’t like the landlord’s proposed rent, and so the tenant sued for specific performance of renewal of the rental at a lower rate.  The trial court dismissed the tenant’s complaint, saying that the renewal clause was too uncertain to enforce.  The appellate court reinstated the complaint, saying that the clause is enforceable if the parties did not intent to terminate the lease in the event that they couldn’t agree on the amount of rent.  The appellate court certified a question to the Court of Appeals of New York on whether they done right or not.


Issue: If a provision in a lease says that the rent for a renewal period is “to be agreed upon”, is that provision enforceable?


Rule: A mere “agreement to agree” is unenforceable.


Analysis: The court finds that the provision could have been made enforceable with not much more, but it is not enforceable as it stands.  The provision wouldn’t have to give a specific figure, but it would have to give a way to come out with a figure that both parties agreed to.  The court finds, however, that this particular provision left no room to resolve its ambiguity.


The concurring opinion says that even though May Metropolitan Corp. is not applicable to the present case (which is what the majority says), it could be applicable to other leases.  This opinion says that it shouldn’t be impossible for a “to be agreed upon” lease renewal to be enforced, even in light of a certain “course of dealing” between the parties.


The dissenting opinion would have affirmed the decision of the appellate court.


Conclusion: The contract is void for vagueness.  The appellate court is reversed and the judgment of the trial court is reinstated.




1.     A clause without the “to be agreed upon” language may be interpreted as implicitly agreeing to continue at the same rent.  It doesn’t seem like such clause means nothing: it seems as though the tenant is being offered some right.  At least it seems like the landlord cannot offer the storefront to another potential tenant before negotiating with the present tenant.

2.     Here, you’re putting some limits on what the rent could be.  $1 per month would not be reasonable or fair, and $100,000,000,000,000 per month would not be reasonable or fair.  I guess the question is whether there exists a number for the rent such that both sides could, in good faith, declare it to be fair and reasonable for them.  During the original period of the lease, there must exist such a number.


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