Crittenden & Cowles Co. v. Cowles

72 N.Y.S. 701 | N.Y. App. Div. | 1901

Kellogg, J.:

It appears from the moving papers that plaintiff is a domestic^ corporation engaged in the business of selling, at retail, stationery, wall paper, etc., in dens Falls, N. T.; that the lease of the store it occupied and did business in expired May 1,1901; that defendant and one James W. Barber were at that time, and for some months, prior thereto, the sole directors of said corporation; that Mr. Barber had control of the majority of stock of said corporation; that for some time prior to May 1, 1901, a feud existed between these directors; that Mr. Barber threatened to deprive defendant of the, management of the corporate business; that Mr. Barber first applied to the landlord for a new lease running to the corporation, the corporation never having a lease from the landlord, but had occupied under a lease assigned to it by a former lessee; that soon after the application for a lease was made by Mr. Barber, the defendant applied for a lease in his own name. Thereujion the landlord made a journey from his residence in Poughkeepsie to Glens Falls to investigate the situation. At Glens Falls the landlord had a,'meetJiftg at which was represented the defendant, Mr. Bai'ber and all the stockholders of the corporation. The propriety or wisdom of leasing ./fhe premises to the corporation seems to have been fully considered, ¡at that time by the landlord, and he seems to have reached the-•determination not to lease to the corporation. He refused its application for a lease, saying' “ that he had never recognized the corporation as his tenant, and that he would not recognize it now.” The lease in question was thereafter and upon the same day (April 29, 1901) made with defendant. The lease covenants against subletting .and against assigning the lease of the premises called the store. A bond with surety was exacted of the defendant by the landlord, and was furnished for the faithful performance of all the covenants of the lease. This case represents material facts which distinguish the case from any reported case brought to our attention. Here there was no secret leasing; no act done “ behind the back.” Here we have a positive refusal on the part of the landlord to accept the corporation as a tenant. This refusal, after application made and considered, disposed of and cut off that “ expectancy ” which is declared by some authorities to run with every lease — the “ expectancy ” of a renewal. This has been deemed a species of property in the lessee, and a copartner, or one standing in any fiduciary capacity, is not permitted to profit by taking a renewal in liis own name while this “expectancy” exists. But the rule ceases to operate when such “ expectancy ” no longer exists. It will hardly be claimed that a landlorcj may not exercise his own discretion in the selection of a tenant. He may or may not renew, as he chooses. When once he has' declared against renewal, the tenant then in occupation has no more an “ expectancy ” which can be' dealt with. Whoever thereafter leases does the tenant no injury and takes from him no property or property rights. I see no reason in law or equity in excluding a copartner or a director in a corporation from dealing with the landlord in respect to the premises after a renewal to the occupying tenant has been, refused by the landlord. The terms of the lease in question are presumably the terms insisted upon by the landlord. As between the landlord and this defendant the lease is binding. There can be no subletting and no assigning without the landlord’s consent. This Would seem to place the interference by the courts to force a subletting to the plaintiff and to make a tenant for the landlord without his consent as quite beyond its powers.

Under the facts in this case, whatever redress the plaintiff may have, it does not seem to me that it can have the right to occupy these premises as tenant without first getting permission of the landlord. Therefore, to enjoin the defendant against performance of the letter of his lease, and enjoining interference in the occupancy by the corporation of these .premises, is to install a tenant in spite of the covenants of the lease and to interfere with contract relations in a way unprecedented and unwarranted by the facts here disclosed.

The order should be reversed, with ten dollars costs and disbursements, and motion for injunction denied, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.