72 N.Y.S. 988 | N.Y. App. Div. | 1901
On the 24th day of March, 1899, the plaintiff entered into a written contract with the defendant, the latter, for a consideration of $300, one-third of which was paid in hand at the time of the execution of the writing, agreeing to let to the plaintiff the bootblacking privilege at its Flatbush avenue railroad station for a period of one year from the 8th day of May, 1899. The plaintiff, relying upon this contract, made purchases and employed men, and on the 8th day of May sent his equipment, with his men, to the Flatbush avenue station. The prior lessee of the privilege was still in possession of the premises, and, upon- the plaintiff asking the defendant’s superintendent the meaning of his presence, he was told that the old lessee would vacate the privilege that afternoon. Plaintiff wrote the defendant, and on May 12th received a letter informing him that the previous lessee refused to vacate, and for a period o.f two weeks the plaintiff kept two men in his employ, who daily went to the defendant’s station, and were as often confronted with the presence of the former lessee. Some months subsequently the defendant ejected the prior lessee, but at that time the plaintiff refused to accept the premises, and he brings this action to recover damages for loss of business, etc. The defendant has never returned the $100 to the plaintiff, and upon the trial, both parties having requested the. court to direct a verdict, the learned court directed a verdict for the plaintiff for $100, with costs. The defendant, while offering, in deference to the opinion of the court, to restore the $100 to the plaintiff, insists that it is unfair to demand the payment of the costs, and the appeal is based practically upon this idea.
We are of the opinion that under the authority of Eastman v. City of New York, 152 N. Y. 468, 46 N. E. 841, the learned court
The judgment and order appealed from should be affirmed, with costs. All concur.