12 Misc. 299 | The Superior Court of the City of New York and Buffalo | 1895
The preliminary injunction obtained herein was based upon the complaint and accompanying affidavits, and have been supplemented by other affidavits read in opposition to the moving papers. The complaint, in substance, alleges: That plaintiffs are copartners doing business under the firm name of Bagg & Wegefarth. That the defendant Robinson, about the 12th day of March, 1894, leased the building known as the “Court Street Theater,” and entered into possession thereof. That the defendant the Court Street Theater Company is a domestic corporation doing business at the city of Buffalo. That said Robinson duly assigned said lease to said corporation, subject to plaintiffs’ rights. That on March 12, 1894, Robinson entered into a written lease with the plaintiffs, whereby he leased to plaintiffs the basement and space under the sidewalk of said Court Street Theater building for the purpose of selling
“It is hereby expressly understood and agreed that the said parties of the second part [plaintiffs] are to have the exclusive privilege for the sale of beer, wine, liquors, and cigars in the Court Street Theater building, in whatever portion of the premises that said party of the first part may permit the sale thereof, being responsible for the payment of all excise duties and license therefor.”
At the time of the execution of said lease said theater was in process of reconstruction, and the portions, spaces, and places where wines, beer, liquors, and cigars should be sold in the building were not determined upon, and could not be until the same was completed. Upon the completion of the improvements, Eobinson stated to plaintiffs that they were to have the privilege, under the lease, of selling liquors,in every portion of said building. That plaintiffs thereupon entered into possession of said premises, rights, and privileges, and sold wines, beer, liquors, and cigars in every part of the house. That said Eobinson was interested in the gross receipts from the sale of such liquors, and has at all times received his share of the same, and continues to claim and receive them. That plaintiffs obtained the license for the sale of liquors and cigars upon said premises, together with a concert hall license required by the ordinances of the city of Buffalo, which authorized their sale in all parts of the house. That during all the time said Eobinson has been, and now is, the manager of the said defendant company. That since on or about November 1, 1894, defendants have wrongfully and unlawfully interfered with plaintiffs’ rights under their lease, and since February 4, 1895, they have unlawfully and wrongfully barred the entrance from the premises demised and leased into the first floor of said theater, and have refused to allow the plaintiffs free access to and egress from said theater, and all portions thereof, for the purpose of selling wines, beer, liquors, and cigars, and offering the same for sale. That said Eobinson refuses to open the said entrance, and refuses plaintiffs, their agents and servants, the privilege and rights of possession in the said lease, and free access to and egress from the main floor of the theater, notwithstanding repeated requests and demands therefor, and has and still declares that defendants will continue to refuse to allow the entrance to be opened and unobstructed; and that by reason of said unlawful and wrongful acts plaintiffs’ traffic has been entirely cut off through the said entrance upon the main floor and other portions of said theater. That, if defendants are not restrained, plaintiffs will suffer irreparable injury, for which they have no adequate remedy at law. Demands judgment for damages, and for a perpetual injunction restraining defendants from interference with plaintiffs’ rights in the premises. The lease is attached to the complaint, and is made a part thereof. By it the rent reserved is 15 per cent, of the gross receipts of the business done.
There is much conflict respecting many matters contained in the affidavits submitted, and upon much there is no dispute whatever, and the motion may be disposed of, for the most part, on undisputed
■ A license may generally be said to be an authority to do a particular act or series of acts upon the premises of another without having any absolute estate therein, is not assignable, and, before being acted upon, may be revoked at pleasure. The act authorized may not, in many instances, be interrupted by revocation during process of performance, but usually it is revocable at will. Mumford v. Whitney, 15 Wend. 381; Fargis v. Walton, 107 N. Y. 398, 14 N. E. 303. While an easement gives an estate or interest in the land for a specified period, is assignable and irrevocable, and gives the party right of entrance thereunder at all times. Pierrepont v. Barnard, 6 N. Y. 279; Wiseman v. Lucksinger, 84 N. Y. 31. There has been much difference of opinion expressed in the early eases upon the application of the rule to particular facts having regard to whether the claimed right rested upon a license or an estate. But it seems to be now pretty firmly established that mere words will not govern, but the court will look at the nature of the right, rather than the name by which it is called. And while, in the present case, the language used in the lease granting the right to sell, in a strict sense, are words of license, yet the court is not bound by the technical meaning of the words, and will look at the end sought to be accomplished by the instrument, in the light of surrounding circumstances, force being given to practical construction of the instrument by acts of the parties, where such construction does not do violence