119 Misc. 486 | N.Y. Sup. Ct. | 1922
This is a summary proceeding instituted by the landlord to recover possession of certain demised premises in the borough of Manhattan, city of New York, for non-payment of rent. The amount of unpaid rent and water charges and interest, to wit, $8,954.81, was conceded to be due. The defendant, however, answered setting up a counterclaim for damages sustained through the landlord’s alleged breach of one or more covenants of the lease. The trial was had before the court and a jury, and the jury assessed the tenant’s damages at $16,000 and deducted therefrom the amount due the landlord and arrived at a verdict in favor of the tenant in the sum of $7,045.19. A motion was then made to set the verdict aside and for a new trial on all of the grounds mentioned in section 999 of the Code of Civil Procedure, and on the ground that it was contrary to law and that the damages were excessive, and on the exceptions taken during the trial.
At the close of the trial the landlord moved for a final order and for the dismissal of the setoff and counterclaim of the tenant, which motion was denied and an exception duly taken.
It appears that there were two leases made and entered into between the landlord and tenant; the first lease is dated October 1, 1917, and covers the northerly store adjoining the corner store in the building known. as No. 2524 Broadway, in the borough of Manhattan, city of New York, and was to run for a period of ten years from October 1, 1917, at an annual rental of $8,000. On June 1, 1918, the landlord and tenant entered into an additional lease which covered the corner store of said building, which was to be used only as an addition to the store previously rented, and all the terms, covenants and conditions in the prior lease between the parties were to be deemed a part and parcel of the said second lease. In paragraph “ V ” of the first lease the tenant was prohibited from assigning the lease or underletting the premises except under certain conditions, to wit, upon the tenant completing the fitting up and furnishing of the premises as a first-class restaurant, and after that was done he was permitted to assign the lease to a reputable person, financially responsible and of good repute, and upon payment to the landlord of the equivalent of two months’ rent in cash as security for the full and faithful performance by the tenant of the terms of the agreement. After the tenant fitted up the premises for restaurant purposes and on or about October 8, 1920, the tenant assigned the leases to Wilder Brothers and gave them a bill of sale of the personal property contained in the premises.
It further appears that at the time the tenant assigned the lease to Wilder Brothers and gave the bill of sale above mentioned, the said tenant entered into an oral agreement with Wilder Brothers under the terms of which Wilder Brothers were at liberty to demand and receive back the amount of the purchase price, at any time, if their tenancy was disturbed, or if the landlord would not accept them as assignees. The landlord, according to the testimony of the tenant, refused to consider Wilder Brothers as the assignee and threatened interference with the quiet possession of the premises, and by reason of said threats the tenant claims it was damaged to the extent and value of its bargain with Wilder Brothers, who, under the oral agreement, demanded back and received their purchase money and reassigned the lease to the tenant.
The tenant claims that this assignment was not an absolute assignment but by reason of the oral agreement it was a conditional transfer, and that the situation must be considered the same as a case where a third party interferes with the making of a contract or induces one of the parties not to enter into the agreement and thus spoils the bargain of the other party through fraud or other wrongful means. But the difficulty with that contention is that the landlord did not see Wilder Brothers or have any communication with them until after the assignment was made. No bargain was spoiled in this case; on the contrary, the bargain was actually com
Our conclusion is that the tenant has no cause of action against the landlord, and the motion of the landlord’s counsel at the end of the whole case for a final order in favor of the landlord for the amount of the rent unpaid and the water charges should have been granted, as well as the motion for the dismissal of the counterclaim.
Judgment reversed, with thirty dollars costs, and a final order is directed to be entered in favor of the landlord awarding it the possession of the premises described in the petition, and the defendant’s counterclaim is dismissed upon the merits, with costs.
Bijtjr and McCook, JJ., concur.
Judgment reversed.