74 N.Y.S. 723 | N.Y. App. Div. | 1902
Lead Opinion
The plaintiff under his contracts was entitled to a corner store on the northwest corner of Forty-fifth street and Broadway, twenty feet eleven inches wide and fifty-six feet long, the store floor to be one step up from the street and the ceiling to be fourteen feet high, with a cellar underneath, in a building to be erected upon said premises. ■ The defendant Curran is engaged in the construction of a building, the floor of the store to be erected upon the corner (which is the locality covered by the plaintiff’s lease), being from four to seven feet below the level of the street, and the ceiling in front being eleven feet high, and in the rear seven feet high — the ceiling in front, therefore, being only from four to seven feet above the level of the street, and in the rear either level with the street or three feet above it — there being a conflict in the defendant’s affidavits as to the height of the ceiling above the street. ■
It is claimed, among other things, that the plaintiff is not entitled to any relief in this action because of this intended violation of his
An examination of the record in this case shows, not only that there are not three persons who swear that this plaintiff ever consented to take this hole in the corner iii lieu of the store for which lie held a contract, but that there is not one that has had the temerity to swear that he ever consented to any change or alteration in the plans with knowledge that the store that the defendants intended to construct was of the character above set forth.
It may be proper, before considering all the affidavits of the defendants in detail, to call attention to one of them, namely, that of Mr. Farnsworth, the architect who prepared the plans for the building being erected by the defendants upon the site in question.' It is intended by these plans, that above the store of the plaintiff a theatre should be built, and the affiant states that these plans show that the floor of the plaintiff’s store is to be four feet below the level of the sidewalk and that there are to be six steps down; that the height of the ceiling in front is to be eleven feet and in-the rear seven feet, this slope being caused by the necessity of an incline in the orchestra floor of the theatre. By this plan the ceiling.in front of the store would be seven feet above the level of the street, and in the rear three feet, making it a basement store instead of a store upon the street level. But according to Farnsworth’s own affidavit, such a construction is against the building laws'. He says: “ The Building Laws do not allow the main entrance floor of-a theatre to be more than four steps -above the street and- consequently it became necessary to push downward the store space that was to be underneath the main floor of the theatre unless the store that would be in the building were allowed to usurp a good share of the first floor space therein.”
It will now be necessary to consider the affidavits of the three affiants stated to have sworn that the plaintiff agreed to accept this basement store in preference to one raised one step above the street level. As before stated, not only are there not three affiants -who have so sworn, but there is not one of the affidavits read upon the part of the defendants upon the motion which even hints at such a thing; and there are only two persons (not three) who claim ever to have had any conversad m with the plaintiff upon the subject of his lease.
The answering affidavits read upon the part of the defendants, were those of Leander S. Sire, H. 0. Heuer, James M. Farnsworth, James A. Melvin, Southrick Hebberd and Samuel II. Huxford.
Upon this subject the affiant Sire swears as follows: “ As a matter of fact I did personally attend to a considerable extent, on behalf of the assignee of the lease, to the negotiations which led up to the assigning of the lease to him. It was openly stated by me and by the assignee of the lease that the sole and only purpose of acquiring this leasehold estate was for the purpose of erecting a theatre thereon, and the real estate broker who attended to the transaction on behalf of the assignor of the lease, and the assignor himself stated to me frequently at different conversations which we had during the pendency of the negotiations that Mr. Backes, the plaintiff herein, was fully cognizant of the fact that the defendant. Curran was taking an assignment of this lease for the express purpose of erecting a theatre thereon, and that he had stated that he had no objection to the erection of a theatre thereon, even though
It, therefore, appeared that Sire had no conversation with the plaintiff upon this subject; that, all the information he Mad was derived from the broker, Mr. Melvin, and the assignor, Mr. Heuer, and neither of them swear that the plaintiff ever told them that he consented to the change because he had the idea that although he would not get as desirable a store in appearance, yet its close proximity to the theatre would increase the volume of his business.
The next affiant is Mr. Heuer, who does not pretend in his affidavit that he ever had any conversation with the plaintiff showing that a theatre was to be erected on the premises, or that the store was to be changed in any respect. He states as follows: “ This deponent informed the plaintiff in this action that he, deponent, intended to have a new set of plans and specifications drawn for said building to be erected upon said premises by T. R. Cutler, architect.
“ That after said plans and specifications had been prepared by the said T. R. Cutler, the said T. R. Cutler informed deponent that the said Thomas J. Backes called at the office of the said T. R. Cutler and examined said plans and specifications and raised .no objections thereto. That said plans and specifications so prepared for deponent by the said T. R. Cutler were thereafter filed in and approved by the building department of the city of New York.”
It is shown by the affidavit of Cutler that the plans, and specificar tions which he prepared for Heuer, and .which are referred to by Heuer, and to which the plaintiff made no objection, gave him the store which his contract called for.
The next affiant is Mr. Farnsworth, who does not pretend to have had any conversation with the -plaintiff; and his affidavit is devoted to a criticism "of the affidavit of Cutler, who prepared the plans of the building which was to be erected upon the premises according to the plaintiff’s contract, and to an attempt to show that a store below the level of the sidewalk was just as light as a store which is' raised above the level of the street— a claim which hardly seems worthy of consideration.
The next affidavit is that of Mr. Hebberd, who does not pretend to have had any conversation with the plaintiff upon this subject.
The last affidavit is that of Mr. Huxford, and to what does he swear? He states that he is a real estate broker, and that.he had heard that the building in which plaintiff at that time had his store was going to be torn down, and that he had also- heard a rumor that the plaintiff had disposed of his leasehold interest in the opposite corner, and with these rumors in mind he called upon the plaintiff to ascertain whether an opportunity might afford itself for him to transact some business in his line with the plaintiff towards finding him another place of business. The affidavit then proceeds: “ Deponent’s conversation with the plaintiff, therefore* took this turn:
“ Deponent learned from the plaintiff that he- had made a transfer of his interest in the corner opposite his store, and that plaintiff understood that the parties who then- had control of said leasehold interest were going to erect upon the property a theatre.. In this connection, the plaintiff stated to deponent that he could not say as yet whether he would .want to provide himself with any different quarters than those which he expected to have in the theatre building which he understood the parties were going to erect on the said' leasehold.premises, and for which quarters the plaintiff had already made provision.
“ As yet, however, the plaintiff stated that he was not sure but what the parties who were designing to erect the theatre building were going to make some change in their style of building that would necessarily affect the dimensions and style of store which plaintiff had originally devised for himself before he parted with his leasehold by locating his store one or two steps below the street level and by changing- it somewhat otherwise, but plaintiff stated that even if the original plan of building were to be thus deviated from so as to suit the designs for a theatre, and if the result of so doing were not to give the plaintiff all that he expected, yet he thought that the prospect of having his drug store in a theatre building would be worth so much to him in a business way as to*195 largely compensate for possible disadvantages his prospective store on the premises might possess in other respects if such disadvantages should arise by reason of the departure from the original structure plans. Plaintiff also remarked that he might after all change his mind and conclude to sell out his lease on the store if he got a good price, but said that if he did sell it he should expect to receive $20,000, or $25,000 as a figure.”
Mr. Huxford nowhere states, nor is there any pretense that he in any way communicated this conversation to any of the defendants. And, further, it is conclusively proved, by the evidence offered by the defendants, that the plaintiff never understood, and tiever had any reason to suppose, that the store which thé defendants proposed to erect was to be more than two steps below the level of the street; and that anything was ever said to him which could bear that construction there is not a particle of' evidence. And this is the last affiant upon this subject.
It seems to be established, therefore, as stated at the commencement of this opinion, that not only are there not three affiants, but there is not one, who has testified that the plaintiff in this action in any way consented to the giving up of his store with a fourteen-foot ceiling, a step above the street, for one in a basement or cellar with a ceiling either level with the street or a little above it and reduced in height in some parts of the store from fourteen to seven feet; and there are only two affiants who pretend to have had any conversation with the plaintiff in regard to the question of any change of plan, and none of them attempt to swear that he was ever told what those changes were.
It is said that there is only the affidavit of the plaintiff to contradict those of the three affiants, who would be guilty of flat perjury if the plaintiff did not give this consent to a store four feet below the level of the street. It is shown that there are only two who swear to any conversation, and that neither of them would be guilty of any perjury had the plaintiff not consented to the change which it is proposed to make in the plan of his store. Furthermore, it is said that the oath of the plaintiff is the only thing which is opposed to that of these supposititious establishers of a consent. Not a particle of' weight is given to the fact that this plaintiff comes into court .with a written contract, recognized throughout the whole
On the subject of the right of the plaintiff to maintain an action for injunctive relief, I concur in the views of Mr. Justice Patterson.
Patterson, Hatch and Laughlin, JJ., concurred; Ingraham, J., dissented.
Dissenting Opinion
In denying .the application for an injunction pending suit, the learned judge at Special Term placed his decision upon the ground that the plaintiff was in effect asking for the specific performance of an agreement for the construction of a building, and that the injunction prayed for : was to prevent a building from being constructed in. any other way than in accordance with certain plans and specifications by which he would be furnished with a store in that building of a certain character and dimensions. The facts appearing upon the motion are very simple and are well established, so far as the plaintiff’s right is concerned. Under contracts he was entitled to have a lease of a' corner store on the large plot of ground mentioned in the complaint. It appears that in order to secure that store he had taken from the Astor estate a lease of the whole plot. That lease was transferred by assignment until it finally became the property of the defendant Curran. Running through all the transfers, the plaintiff’s right to a corner store in a building to be erected was recognized and preserved, and that he has a right to some kind of a store at that corner is not disputed by these defendants. The plaintiff had plans and specifications for that store prepared by his architect, and these defendants knew of those plans and specifications. The plaintiff never abandoned, his right to the store, and while he máy have assented to a theatre being erected upon the whole plot,, it- is apparent that he never waived in any way his right under his contracts which was of vital importancé to him, namely, the securing for the preservation of his business a store suitable for that business at the corner of the "plot of ground he had acquired, originally from the Astor estate solely with that object in view. That specific performance of an agreement to furnish a store of particular dimensions in "a building not existing, but to. be con
The order should be reversed, with costs, and an injunction pending suit granted to prevent the defendants from constructing a building in such a way as to deprive the plaintiff of the right to a store of the character and dimensions and situation of that projected upon the plans prepared by his architect.
Order reversed, with ten dollars costs and 'disbursements, and motion for injunction granted, with ten dollars costs to abide event. The amount of the undertaking to be determined upon settlement of order.
Van- Brunt, P. J., Hatch and Laughlin, JJ., concurred; Ingraham, J., dissented. .
Dissenting Opinion
I think the court below was justified in refusing to grant a temporary injunction restraining the improvement of this property,
It appeared that the plaintiff had leased a piece .of property upon the corner of Forty-fifth street and Broadway, upon which he intended to erect a building which would provide him with a store on the corner, twenty, feet and eleven inches in width and from fifty-six to sixty feet in depth. He caused plans for the erection of a building to be prepared, which provided for a 'building two stories high, and then transferred the lease to one Heuer, who executed to the plaintiff a lease of a store on the corner of Forty-fifth street and Broadway, twenty feet and eleven inches ih width and sixty feet in depth on Forty-fifth street-and fifty-six feet in depth on the southerly side of said store. This lease contains mo express covenant that the lessor should erect upon the premises ;a building in accordance with the Cutler plan; on the contrary, it would seem to have been' understood that the building to be erected was to be changed and the assignee of the lease had. Cutler, the architect, make such changes. The changed plan was seen by the plaintiff, to which he made no objection. The plaintiff does not claim,' as I understand it, that the- defendants were bound to erect the building designed -by the original Cutler plan. It is only the store as shown on that plan- that it is claimed that the defendants are bound to provide. After the provision for the lease of a store, -describing it by metes and bounds, the term is fixed at ten years'at the yearly rent of $2,500, and then comes the following provision : ec But the said rent shall not be due and payable until the completion of the said store according to the specifications of T. R. Cutler, Architect, now in possession of each of the parties hereto, by the party of the first part, and the occupancy thereof by the party
The form of this covenant is suggestive as to the intention of the parties. The lease that is given to the plaintiff is of a store of certain dimensions, but without any provision as to its height or its relation to the level of the street. It is simply to be a store bn the corner of Forty-fifth street and Broadway, twenty feet and eleven inches in width and from fifty-six to sixty feet in depth. A store in the building on the corner of the street of these dimen.sions would satisfy this requirement in the lease, whether it was slightly above or below the level of the street, or whether the ceiling was of a uniform height of fourteen feet or eleven feet - in front and seven feet in the rear. It was clearly contemplated that the lessor was. to erect a building upon the premises "the lease of which had been assigned to him by the plaintiff, for in no other way could he fulfill the covenants contained in his lease; but as to just what height the ceiling should be, or as to whether the level of the store should be above or below the surface, there was in the lease no express condition. The further provision of the lease that the said rent should not be due and payable until the completion of the store according to the specifications of T. E. Cutler, architect, it being understood and agreed that no rent should be due from the lessee to the lessor until such completion and occupancy, is the only provision in the lease referring to the Cutler plans. This provision gave to the plaintiff a privilege, but in terms imposed no obligation upon the lessor. Before the plaintiff could be compelled to pay any rent under the lease the store had to be completed according to the Cutler plansbut this is quite different from an express covenant on behalf of the lessor to erect a building or store according to the Cutler plans and specifications. The supplemental agreement executed between the lessor and lessee, which provides that the plaintiff was to" be given possession of the premises leased by him not later than October 1, 1901, contains no reference to the dimensions of the store and no reference to the building that was to be erected upon the premises. The transfer of this lease from the plaintiff’s lessor to the defendant Curran, by
I think, therefore, the order appealed from should be affirmed.
Order reversed, with ten dollars costs' and disbursemeUts; and motion for Injunction granted, with ten dollars costs to abide event. The amount of' undertaking to -be determined upon' settlement of order. ' .