198 A.D. 708 | N.Y. App. Div. | 1921
The action is to recover rent at the rate of forty-five dollars per month for the first nine months of the year 1920, pursuant to the terms of a lease of premises on Staten Island made by the plaintiff to the defendant on the 1st of February, 1914, for the term of ten years. At the time of the execution of the lease the defendant was in possession of the premises under a former lease and was using the same for saloon purposes
Plaintiff contends that the lease remained unaffected by the prohibition contained in the Eighteenth Amendment and National Prohibition Act against the sale of intoxicating liquors for beverage purposes, and that the Appellate Term erred in modifying the judgment. At the time the lease was made defendant was engaged in manufacturing and selling beer under that name and of the former standard for beverage purposes and this became unlawful on and after January 29, 1920. When the lease was made the sale of intoxicating liquors and lager beer was lawful and plainly it was primarily for the sale of those beverages that the defendant leased the premises for it was then lawfully engaged in making and selling beer. This is perfectly evident from the fact that the defendant had been a tenant of the premises using them for those purposes under liquor tax certificates issued under the authority of the State for upwards of twenty years; and that this was mutually intended by the parties fairly appears from the recitals- in the damage clause of the lease wherein the word “ saloon ” is expressly treated as synonymous with “ place for sale of malt, strong, spirituous, or intoxicating liquors or beverages.” On the theory that it might be held that there was an ambiguity in the meaning intended by the parties by “ saloon business ” as used in the lease, the tenant offered evidence to show that the landlord refused to rent the premises for any business other than such as had been theretofore conducted thereon by the tenant. That evidence was excluded on the theory that the provisions of the lease are not ambiguous, and in that ruling we concur. The evidence shows that the main or principal business of a saloon is the sale of lager beer and whisky and that incidental to that business, cigars, cigarettes, seltzer water and other soft drinks are sold, and that such was and had been the business conducted by the tenant on the premises in question. In these circumstances, there can be no doubt that it was contemplated when the lease was executed' that the tenant should have the right to continue the business as theretofore
It follows that the determination of the Appellate Term should be affirmed, with costs.
Clarke, P. J./ Dowling, Smith and Page, JJ., concur.
Determination affirmed, with costs.