198 A.D. 717 | N.Y. App. Div. | 1921
On the 15th of August, 1910, the J. & M. Haffen Brewing Company, a domestic corporation, executed a lease in writing to the respondent Kling of certain premises consisting of the land and building at the northeast corner of One Hundred and Forty-ninth street and Third avenue, borough of The
“ IX. And the said tenant doth covenant and agree with the said lessor- that the tenant will not use or sell upon the said premises any other lager beer brewed in the State of New York or New Jersey than that of the J. & M. Haffen Brewing Company and the lessor agrees that the price to be charged the tenant for such lager beer shall be the regular market price less a discount of thirty-five percent, and the store of said premises shall not be used or occupied for any other purpose than saloon and the sale of lager beer.”
The tenant entered into possession under these leases and has ever since continued in possession thereunder and under the extension of the second lease and used them as a saloon and in connection with the saloon until the Eighteenth Amendment to the Federal Constitution and the National Prohibition Act (41 U. S. Stat. at Large, 305, chap. 85; Id. 308, chap. 85, tit. 2, § 3) became of force on the 29th of January, 1920 (40 U. S. Stat. at Large, 1941, 1942 ; 41 id. 322, chap. 85, tit. 3, § 21); and thereafter he assigned his leases to the Burnee Corporation. Prior to the assignment by the landlord to the petitioner, as hereinafter stated, it removed the bar fixtures and proceeded to alter the premises for use as a store by constructing partitions therein, and on the date of the assignment there was no “ trace ” of the saloon left. The landlord remained the owner of the leases and received the rent thereunder from the tenant until the 11th of February, 1920, when it assigned the leases to the petitioner. The rent was payable in monthly installments on the first day of each month in advance, and the tenant paid rent for the months of January and February, 1920, to his original landlord prior to the assignment by the landlord
It follows that the determination of the Appellate Term should be affirmed, with costs.
Clarke, P. J., Dowling, Smith and Page, JJ., concur.
Determination affirmed, with costs.