Summary
In Murphy, the tenant was allowed to "plant[ ], grow[ ], and cultivat[e]" and "recover[ ]" the shellfish from the underwater land; they could cultivate the shellfish but not recover, or recover them but not cultivate, or do both, or do neither.
Summary of this case from Airfield Sentry Ltd. v. CitibankOpinion
July 15, 1985
Appeal from the Supreme Court, Suffolk County (McCarthy, J.).
Judgment affirmed, with costs.
Plaintiffs argue that the lease provision which gives Long Island Oyster Farms, Inc. the right to use the leased underwater lands for "planting, growing, and cultivating thereon and recovery therefrom oysters and other shellfish" should be construed to contain a restriction against removal of naturally grown clams, because the verbs are connected by "and" rather than "or". That is not the law. "`And' is considered also as `or' unless the document shows on its face that the word `and' is to be literally construed" ( Lamborn v. National Park Bank, 212 App. Div. 25, 32, affd 240 N.Y. 520). Nothing on the face of this document shows that a literal construction of the word "and" was intended. Plaintiffs also argue that the provision would appear ambiguous, and therefore would require the consideration of parol evidence ( Kalmon Dolgin Co. v. Walnut Lanes, 27 A.D.2d 843), if the operative words were read in reverse order. The only relevant inquiry in construing this lease is whether the meaning is clear and unambiguous when the words are read in the order in which they were formalized by the parties. So read, the provision does not reveal ambiguity, but rather, indicates unambiguously that the defendant Long Island Oyster Farms has the exclusive right to harvest all shellfish on the leased underwater lands indicated, whether they be naturally grown or cultivated. Brown, J.P., O'Connor, Weinstein and Rubin, JJ., concur.