Hess v. Roberts

108 N.Y.S. 894 | N.Y. App. Div. | 1908

Ingraham, J.:

This action is based upon a contract made on the 4th of October, ‘ 1905, between “ L. P. Roberts, Manager of the Murray Hill Hotel, Hew York, party of the first part, and Virginia D. Hess, Manager of the Broadway Stenographic Bureau, Hew York, party of the second part,” by which in consideration of the payment of $200 by the plaintiff to the defendant in equal monthly payments in advance for the term of oneyear from the 4th of October, 1905, to the 4th of October, 1906, it was agreed that plaintiff should have the exclusive privilege of the public stenographer’s office situated in the Murray Hill Hotel. The plaintiff agreed to pay the rent promptly each month in advance “for the exclusive privileges of the public stenographer’s office, and to do the private office correspondence for the hotel management, and to keep the stenographic office open from 8.30 a. m. to 10 p. m., each day, except the lunch hour, and to furnish competent stenographers for this service.” It was also agreed that if the service was not satisfactorily performed the agreement would be revokable, and the plaintiff had the same privilege if the office should not he found sufficiently remunerative or for other cause. The substance of the agreement appears to be that it would last a year unless either party wanted to end it. The complaint alleges that the plaintiff entered into possession of the public stenographer’s office in' the Murray Hill Hotel and continued to hold the same until the 9th of January, T908; that plaintiff had performed the condition to be performed on her part and had paid the rent, except the rent for the month of January, 1908, which she tendered; that on or about January 8, 1908, the defendant notified the plaintiff that she must immediately leave the hotel and remove her belongings therefrom ; that the plaintiff refused to do so whereupon the defendant extinguished the lights in the room and removed the plaintiff’s property therefrom, and refused to permit the plaintiff to occupy the stenographer’s office or to do any work as a stenographer and typewriter therein. Upon tliese^facts the plaintiff demanded judgment that the defendant be enjoined pending the action and perpetually from interfering in any way with the plaintiff’s possession of said stenographer’s office in the hotel, and from interfering in any way with the plaintiff’s continuing to conduct her business there as such public stenographer during the remainder of said term under said lease, to wit, October 4, 1908, and from granting to any other person the'privilege of exercising the calling of the public stenographer’s and typewriter’s office in the Murray Hill Hotel prior to the 4th of . October, 1908, and the court below has enjoined the defendant • during the pendency of the action from interfering in any way with the plaintiff in the prosecution ‘of her business as a public stenographer and typewriter in the said Murray Hill Hotel or with her exclusive possession -of said office, and from leasing or granting privileges to any other stenographer or typewriter of any sort in any way in the prosecution of the business ofpublic stenographer and typewriter in said hotel prior to October 4,.1908. As it is clear that the action could not be-determined before the termination of the'rights given by the contract the temporary injunction grants- to the plaintiff all the relief which she would get by final judgment and in effect determines the action.

This instrument is called a lease although it is' nothing of the kind; it is a mere agreement to allow a stenographer and typewritér to carry on business in a hotel. The plaintiff is given the right to carry on the business of stenographer and typewriter in the hotel, and for that purpose is to have the exclusive privilege of the public stenographer’s office. But it was expressly agreed that if the services ■ rendered • by the plaintiff were not satisfactorily performed the agreement could be revoked “ without appeal by said first party,” and the plaintiff' had a like privilege for any cause. Under such a contract it is quite clear that neither party could insist upon maintaining the agreement against the opposition of the other.’ It is quite immaterial that the defendant did not state that, the serv- , ice was unsatisfactory when he revoked the agreement; his revoking it was sufficient evidence of his determination that the service was not satisfactory. The defendant’s affidavit stating as a reason for revoking the agreement that the plaintiff was conducting some business 'other than that of stenography and typewriting and that people were calling on her at the hotel and Snaking demands for money which interfered with the management of the hotel, justified him in determining that the service was not satisfactory. But assum- , ing that the defendant had.no right to '.revoke the agreement and prevent plaintiff from continuing this business at the hotel, she had a complete remedy at law and an appeal to'a court of equity was unnecessary and unjustifiable. There is no question as to the defendant’s responsibility, and the fact that the lucrative season for the. plaintiff’s woi'k extends from January to June should only be a reason for increased damages if’ there was a breach of the contract. The cases which have restrained a landlord from interfering with a tenant’s possession of real property have no application, for here there was no property leased to the plaintiff, but an agreement to allow her to carry on the business of stenography and typewriting in the hotel.

The order should, therefore, .be reversed, with ten dollars costs and disbursements, and the motion to continue the in junction denied, with ten dollars costs.

Patterson, P. J., Laughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, wilh ten dollars costs.