156 N.Y.S. 490 | N.Y. App. Term. | 1915
Action for rent. Plaintiff by written lease rented to the defendants certain vacant lands, owned by her at Rockaway Park, Queens county. The lease was for a three-year term commencing May 17, 1914, at a total rent of $2,400, payable $500 on the execution of the lease; $300 on July 15,1914; $400 on May 17,1915; $400 on July 15,1915; $4Q0 on May 17, 1916; and $400 on July 15,1916, and provided that the premises were to be used “ for business purposes.” The usual covenant of quiet enjoyment was included. The defendants, as tenants, entered into possession 'and erected thereon such structures as. were adaptable to the conduct of an open-air, moving-picture pavilion. Thereafter, and about June 30, 1914, the Matinecock Realty Company and other neighboring owners commenced an action in the Supreme Court, Queens county, alleging in substance that the premises of. the plaintiff here were burdened with a covenant against its use for a moving-picture business and praying for
“It is hereby stipulated and agreed between the plaintiffs and the defendant Hallett, that said defendant withdraws her answer and consents to judgment against her-for the injunction prayed for in the complaint, but without costs or money damages of any kind against her;
“It is further stipulated that such judgment shall not be entered unless judgment be also entered against one or more of the other defendants.”
Within a week thereafter the defendants here and as defendants in that action also by written stipulation withdrew their answers and consented to the entry of judgment against them, and thereupon judgment was entered enjoining the defendants (the parties here) from continuing said moving-picture enterprise and commanding the removal of the said structures. The plaintiff now seeks to hold the defendants to the lease and sues to recover the installment of $400 rent payable thereunder on the 17th day of May, 1915.
The record now under review conclusively shows that the defendants here knew of the alleged restrictive covenant and that they intended to test its efficacy by accepting a lease and embarking in the moving-picture business on the premises. .The testimony on that head given by the defendant Sigerson was: “ We told her (plaintiff) we thought the restrictions would not hold down there and we wanted to open a moving-
We fail to find anything in the act of leasing which bears any semblance to conduct on plaintiff’s part, creating an estoppel. There was no fraud or evasion. The transaction was open, and the circumstances were
. As to the judgment itself in the Matinecock Realty Company’s suit, an estoppel of record cannot be predicated thereon. It is neither conclusive of anything here involved, nor does it prevent the maintenance of this action. At most, that judgment adjudicated that the parties here were violating a restrictive covenant and must cease doing so. It adjudicated nothing in favor of any defendant as against a co-defendant. All defendants were regarded by the judgment as equally conducting a venture inhibited by the covenant. If the defendants here expected to be relieved by that judgment of their liability to the plaintiff herein for rent under the lease and had any ground upon which to base such an appeal, they were bound to interpose their claim by answer and serve a copy thereof upon their co-defendant. Ostrander v. Hart, 130 N. N. 406; Savage v. City of Buffalo, 49 App. Div. 577, 581. In Mahoney v. Prendergast, 35 N. Y. St. Repr. 197, a dower suit was brought by Mahoney’s mother against him and his wife in which it was found that a conveyance, which was made by Mahoney through a third person to his wife, was without consideration and for the sole purpose of vesting the apparent legal title in her in order to protect Mahoney. In an action thereafter brought by Mahoney to recover the property from his wife’s devisee, it was argued that the finding in the dower suit was conclusive evidence against such devisee that there was no consideration for the transfer, to which argument the court (p. 199) say: “ The answer is, that the present plaintiff and his wife were co-defendants in that action; they were in no
Nor does the fact that the plaintiff here consented to the entry of judgment in the Matinecock Realty Company’s suit aid the defendants upon the theory of estoppel in pais. The plaintiff’s consent to judgment conditioned on judgment being entered against her co-defendants, did not and could not assume that such co-defendants would refuse to litigate, but, instead, would also consent to the entry of judgment. She was not, a necessary party to the injunction suit. The tenants in occupancy under the lease and carrying on the inhibited calling were the ones to be enjoined in that respect, although her inclusion was properly within the scope of the injunction sought. It was but natural to find the landlord rebelling (as the record in the case at bar discloses) against being sued, and when she desired to be relieved as a litigant she withdrew upon the express stipulation that no judgment against her should follow unless and until one went against her tenants. Instead, however, of resisting, these tenants, whatever their motive may have been, promptly consented to the entry of the restraining judgment. The situation, therefore, was one which the tenants themselves created, and for any loss or injury which may be visited upon them they have themselves alone to blame. Nothing appears by the judgment-roll or from the record now under review from which
The judgment should be reversed, with costs, and judgment directed for the plaintiff in the sum of $400, with interest t,o be computed from the 17th day of May, 1915, and appropriate costs in the court below.
Maddox and Kelby, JJ., concur.
Judgment reversed, with costs.