118 A.D.2d 532 | N.Y. App. Div. | 1986
In an action for declaratory and injunctive relief, the defendants appeal and the plaintiff cross-appeals, as limited by their respective notice and cross notice of appeal, from stated portions of a judgment of the Supreme Court, Westchester County (Buell, J.), entered April 9, 1984.
Judgment modified, on the law, the facts and as a matter of discretion, by deleting the fourth decretal paragraph thereof. As so modified, judgment affirmed, insofar as appealed from, without costs or disbursements.
In this declaratory judgment action, the court was called upon to determine the rights and obligations of the parties under a lease dated September 6, 1955. The plaintiff, Gimbel Brothers, Inc. (Gimbels), is the lessee under the lease of certain premises at the Cross County Shopping Center in Yonkers, New York. The defendant, Brook Shopping Centers, Inc. (Brook), is the owner of the shopping center, and the successor in interest to the original lessor. The defendant, Marx Realty & Improvement Co., Inc. (Marx), is the managing agent of the shopping center. It was stipulated by the parties that, when the lease was negotiated, "there were no discussions concerning Sunday openings of the Cross County Store”.
First, we agree with the trial court that the defendants were not entitled to reformation of the contract so as to permit the exaction of "Sunday charges”. The lease simply does not provide for such charges. Nor does the lease prohibit Gimbels from opening on Sunday, should it choose to do so. In fact, the lease provides that the landlord would, inter alia, keep the shopping center’s roadways and walkways clean and well lighted "at all times that [Gimbels], in its sole discretion, shall elect to be open for business” (emphasis added). The defendants’ argument is that the law as it existed in 1955 must be incorporated into the lease agreement. It is true that contracting parties may be presumed to have acted with
Gimbels argues, on its cross appeal, that it is entitled to restitution of the $19,800 it paid in "Sunday charges” between January and June 1978. Gimbels argues, in this regard, that such payments were made pursuant to a mistake of fact. We find, however, that the weight of evidence supports the conclusion that the payments of $825 per Sunday for 24 Sundays were made voluntarily, without protest, and that no mistake of fact was involved. Arthur Weber, the former accounting manager for Gimbels’ New York Division, testified that he was authorized by Gimbels’ treasurer, Frederick Van Pelt, and the vice-president and director of stores for Gimbels’ New York Division, a Mr. Roberts, to pay those charges while the matter was being investigated. Van Pelt testified that he instructed the accounting manager to consult with Mr. Roberts. According to Van Pelt, the decision to stop paying the $825 per week charge was made at a subsequent annual budget expense review meeting. The vice-president of Gimbels
It therefore becomes necessary to consider whether Gimbels should receive restitution of the $19,800 it paid in "Sunday charges” on the ground that those payments were made under a mistake of law (i.e., a mistake regarding Gimbels’ contractual duty to pay such charges). The traditional rule is that a voluntary payment made with full knowledge of the facts cannot be recovered because it was made pursuant to a mistake of law (Adrico Realty Corp. v City of New York, 250 NY 29; Flynn v Hurd, 118 NY 19). The harshness of this absolute rule was ameliorated by the enactment of CPLR 3005, which provides that "[w]hen relief against a mistake is sought in an action * * * relief shall not be denied merely because the mistake is one of law rather than one of fact”. However, in Mercury Mach. Importing Corp. v City of New York (3 NY2d 418, 429), it was held that the foregoing statute "does not require that mistakes of law shall be treated in all instances as though they were mistakes of fact”. Clearly, then, a party is not automatically entitled to relief simply because that party acted under a mistake of law (see, Birchwood Towers #1 Assoc. v Haber, 98 AD2d 697, 699; Goodison v Goodison, 66 AD2d 923, affd 48 NY2d 786). We do not believe that the trial court abused its discretion in denying such relief in this case. Indeed, we find that the weight of the evidence supports the conclusion that Gimbels was not operating under an actual mistake of law but, instead, made the subject payments voluntarily, as a matter of convenience, without having made any effort to learn what its legal obligations were. Gimbels admittedly paid the $825 per week fee for almost half a year, and had voluntarily paid a lower fee for Sunday openings for almost a full year prior to that. When a party intends to resort to litigation in order to resist paying an unjust demand, that party should take its position at the time of the demand, and litigate the issue before, rather than after, payment is made (Flower v Lance, 59 NY 603, 610;
Turning to the issue of the parking fines imposed by the defendants upon Gimbels, we agree with the trial court that such fines were imposed in violation of the clear provisions of the lease. Specifically, article 3 (d) of the lease provides that "[n]o charge for parking in the Common Parking Area shall be exacted or collected from Tenant * * * without Tenant’s prior written consent”. The defendants clearly violated this provision.
Although the trial court correctly issued a declaratory judgment in accordance with the foregoing, we find that it exercised its discretion in an improvident manner by ordering that the defendants and their agents are "permanently enjoined and restrained from interfering in any manner with Gimbels’ use, possession or enjoyment of the premises * * * so long as Gimbels complies with the provisions of its lease”. This injunction, in essence, compels the landlord to respect the rights of the tenant, provided the tenant respects the rights of the landlord. It is, in other words, "little more than a direction to do right in the future” (Earl v Brewer, 248 App Div 314, 315, affd 273 NY 669). A judgment granting injunctive relief " 'must define specifically what the enjoined person must or must not do, in language so clear and explicit that a layman can understand what he is expected to do, or refrain from doing’ ” (Xerox Corp. v Neises, 31 AD2d 195, 197-198, quoting from 28 NY Jur, Injunctions, § 147; see also, Waterman Corp. v Johnston, 276 App Div 1062, 1063; Earl v Brewer, supra). We furthermore find, as a matter of fact, that Gimbels did not establish that the defendants were threatening an act contrary to its rights which, in the absence of injunctive relief, would cause irreparable injury. For these reasons, we delete the grant of injunctive relief from the judgment under review, and otherwise affirm the judgment, insofar as appealed from. Gibbons, J. P., Thompson, Brown and Weinstein, JJ., concur.