103 A.D. 192 | N.Y. App. Div. | 1905
The merits of this case are altogether with the plaintiff, and he is undoubtedly entitled to recover something for the breach of a contract made between him and the defendant. That contract was in writing. The defendant was the lessee and proprietor of hotel property at Coney Island, and he agreed with the plaintiff to allow the latter to erect kiosks around a loop in front of his property and do business therein. These kiosks or booths were to be used as places in which to sell certain small articles such as cigarettes, tobacco, peanuts, fruit, flowers and candies. The plaintiff agreed to erect them in an attractive and artistic manner at his own expense. He was to have the sole and exclusive right to sell the articles. The contract is dated January 16, 1901, and the defendant was to receive $150 on the signing thereof. That amount -was paid. The defendant was also to receive other small payments and ten per cent of the gross receipts as rent. There were restrictions as to the use of some of the stands or booths but they are not material. At the time the agreement was made, the defendant’s business was in charge of one Clayton, manager of the hotel. The plaintiff began to build the booths and five of them were erected and in place the latter part of March or the early part of April, 1901, and it cost the plaintiff about $600 to put them up. In March or the early part of April they were destroyed and removed by Clayton. The plaintiff was never allowed to go into possession of them. The defendant contended that he is not responsible for the destruction of the structures or the breach of the contract. He claimed that he had turned over the hotel to Clayton and ceased to have any interest in it. He swears that he so told the plaintiff and offered back the $150. The evidence shows that the booths were destroyed by Clayton and the issue was whether Clayton in doing so acted as the agent of the defendant
It is, urged, however, that from the amount of the verdict it is
The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.
Van Brunt, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appel lant to abide event.