13 Misc. 2d 271 | N.Y. Sup. Ct. | 1958
Motion to dismiss complaint under rule 106 of the Rules of Civil Practice on the ground that same fails to state a cause of action.
The complaint alleges that defendant “ promised ” plaintiff’s mother that if plaintiff obtained a law shingle defendant would have same affixed to the building wherein plaintiff is a tenant; that defendant has refused to perform his promise and plaintiff seeks specific performance thereof. The promise, if made, amounted to no more than a mere license. A license has been defined as a mere privilege or permission given by the owner of land authorizing another to enter and use or occupy the land or part thereof for any special purpose. (Walsh, Law of Property [2d ed.], § 150; Kaypar Corp. v. Fosterport Realty Corp., 1 Misc 2d 469, affd. 272 App. Div. 878, motion for leave to appeal denied 297 N. Y. 1036.)
A license is revocable at the option of the licensor. (Crosdale v. Lanigan, 129 N. Y. 604.) Defendant’s refusal to affix the sign was tantamount to a revocation of the license, if any license were granted.
The motion to dismiss is granted. Settle order on notice.