132 Misc. 366 | N.Y. Sup. Ct. | 1928
Plaintiff brings this action to secure a declaratory judgment as to the rights of the parties in respect to subletting or assigning by lessee of a lease of certain store premises on Fulton street, borough of Brooklyn. The facts alleged in the plaintiff’s complaint bring this action clearly within section 473 of the Civil Practice Act, it being brought to secure a judgment declaring the “ rights and other legal relations ” of the parties to the instrument of lease, as was held on similar lease provisions by Mr. Justice Proskauer in the case of Sarner v. Kantor (123 Misc. 469). The complaint prays for a declaratory judgment: (1) That the agreement of lease of the aforesaid premises requires the defendant to consent to any assignment or subleasing provision by plaintiff to an assignee or sublessee of financial responsibility for the purpose of using the premises for a lawful business, not similar to any business then conducted on the block of Fulton street between Elm place and Fulton place by any of the tenants or subtenants of the defendant; (2) as consequential relief the plaintiff demands judgment against the defendant in the sum of $30,000, together with the costs and disbursements of this action; (3) and such other and further relief as the court may deem just in the premises.
The lease under consideration was made on or about October 7, 1919, and provides for a store lease for the term of ten years, beginning May 1, 1920, at a certain reserved yearly rental. Among other things, it is provided in said lease: “ This lease is executed and delivered by the landlord upon the conditions and covenants
It will be observed that this covenant is one wholly on the part of the tenant, and that nowhere in the lease does the landlord expressly covenant not to withhold his consent unreasonably. The only covenant in the lease is by the tenant not to sublet without the landlord’s consent. It is not a covenant by the landlord, but is a qualification of the tenant’s covenant. As was held in the English case of Sear v. House Property & Investment Society (L. R. 1880-1881, 16 Ch. Div. 387), referred to by Mr. Justice Proskauer in Sarner v. Kantor (123 Misc. 469, supra), as appears from the syllabus as reported in 50 L. J. N. S. (1881) pt. 1, p. 77: “ Among the covenants by the lessee in an indenture of lease was a covenant not to assign without the lessor’s previous consent in writing, ‘ but such consent not to be unreasonably withheld ’ : — Held, that the words quoted did not constitute a covenant by the lessor, but a qualification upon the lessee’s covenant.”
The court in that case stated in its opinion (at p. 79): “ On the whole I think that the only fair and convenient result to come to is that this is not a covenant to be enforced or sued upon in damages, but that the non-performance of the stipulation leaves the lessee at liberty, if the license is unreasonably withheld, to deal with his property as he would if no license were required. * * * In this particular case I hold that there is not a covenant by the landlord to give his consent.”
Under the clause in the lease now under consideration, as a matter of law, the plaintiff, as lessee, has no action at law for damages for breach of covenant by landlord, as the landlord never covenanted or agreed not to withhold its consent unreasonably. Nor has the plain
The established rule is that the power of assignment and of subletting is incident to a leasehold estate in the absence of contractual restriction. (Fleisch v. Schnaier, 119 App. Div. 815.) That is to say, after the refusal of the landlord to give his written. consent, the tenant has a right to sublet or assign to any person against whom the landlord could have no reasonable objection, and to make such a sublease or assignment without obtaining the landlord’s consent in writing or otherwise.
The question of whether the business of any proposed sublessee or assignee is, as expressed in this lease, “ similar to any other business conducted on the block on Fulton street, between Elm place and Fulton place,” is a question of fact. (Peoples Trust Co. v. Schultz Novelty & Sporting Goods Co., 244 N. Y. 14.) In respect to the Emily Shops, the evidence shows this organization operated eleven stores specializing in the sale of women’s sport dresses, together with ladies’ dresses of other description. Its financial responsibility is not questioned. The defendant refused to accept the Emily Shops as a subtenant of the store premises in question upon the ground that its business was in conflict and it would produce substantial competition with a major department of the business conducted by Ilson & Co. The uncontradicted evidence establishes that Ilson & Co. has conducted a department store for over fourteen years, occupying the entire five-story building and basement at the corner of Elm place and Fulton street, known as No. 474 Fulton street, and in the adjoining building also occupied the top floor of No. 482 Fulton street and the second floor of No. 480 Fulton street. Ilson & Co. maintain a department for the sale of women’s apparel, including dresses, coats, suits and all kinds of sport apparel, which occupied the entire fourth floor of the department store premises. Ilson & Co. also maintained a department for leather goods and luggage, with a complete line of trunks, all kinds of traveling bags and pocketbooks, which department occupied the half of the front of the main store floor
I consider and hold that the defendant reasonably refused both the Emily Shops and a proposed subtenant named Sol Solomon, who desired to conduct a leather goods and trunk shop in the store premises in question; such refusal of the defendant being justified under the lease provision, “ but at no time will the landlord consent to sublet the premises for any business similar to any other business then conducted on the block on Fulton street, between Elm place and Fulton place.” As appears from the evidence, a concern known as Sutton Bros, operated several so-called linen stores or shops in and about the greater city, in which was sold embroidery, linen tablecloths, napkins, pillowcases, other linens and imported laces. Upon the testimony in this record, I consider and find that there is no substantial conflict between this business and that of any one else in this block, and that such linen business is “ not similar to any other business conducted on Fulton street, between Elm place and Fulton place.” I find that the defendant unreasonably refused to accept Sutton Bros, as a subtenant, and waived the question, if any, of their financial ability and of their fitness as tenants in other respects. No suggestion has been made that Sutton Bros, are other than upright, respectable and responsible merchants of ample financial responsibility, and they should have been accepted by this defendant, as landlord, as satisfactory and desirable subtenants.
The defendant, as landlord, has little cause for apprehension in respect to the financial ability of prospective subtenants or assignees. This plaintiff, as lessee, is of unquestioned ample financial responsibility, and, under the long-established rule, unless released by the landlord, the original lessee remains liable for the reserved rent after a sublease or after an assignment of the lease. (Halbe v. Adams, No. 1, 172 App. Div. 186,; Century Holding Co. v. Ebling Brewing Co., 185 id. 292; Gillette Bros. v. Aristocrat Restaurant, 239 N. Y. 87.) In the event that Sutton Bros, are still ready and willing to accept a sublease or an assignment of the demised store premises, the plaintiff is entitled to a declaratory judgment authorizing and permitting the plaintiff, as lessee, to make such sublease or assignment of the demised store premises to Sutton
A declaratory judgment in favor of the plaintiff is granted in accordance with this opinion, with costs. The defendant has submitted proposed findings. Let the plaintiff submit findings and proposed judgment.
