115 Misc. 281 | N.Y. App. Term. | 1921
No proof was taken on the trial. The case was submitted for decision upon the statements of counsel. For the purposes of this appeal, the facts as stated below by appellant’s attorney must be accepted as true. Adler v. Miles, 69 Misc. Rep. 601, 603.
The action is for rent under a sealed written lease. The lease is admitted; also the non-payment of the rent sued for. The defense is that before the Eighteenth Amendment to the Federal Constitution became effective the tenant, claiming that his lease-would be terminated when that amendment became operative, negotiated with his landlord for a new arrangement thereafter, and that the parties agreed that after the amendment became effective the rent should be $250 a month instead of $300 as provided in the lease. From the statement of counsel made upon the trial, it seems that rental reserved in the lease was paid up to January, 1920, and that .the reduced rental was-accepted by the landlord for the months of January and February. The same reduced amount was tendered for the month of March, but was refused. This action is to recover $300, the rent reserved in the lease
This lease was made in May, 1916. Its term was five years from its execution. It provided that the premises were to be “ used and occupied as a saloon and hotel upon the conditions and covenants following.” These are the conditions and covenants that may be material:
“First. The rent was to be paid in equal monthly payments of $300. in advance.
“ Third. That the tenant shall promptly execute and comply with all statutes, ordinances, rules, orders, regulations and requirements of the Federal, State and City governments and all other departments and bureaus applicable to said premises for the correction, prevention and abatement of nuisances or other grievances in, upon or connected in said premises during said term, and shall also promptly comply with and execute all sales, orders and regulations for the prevention of fires, at his own cost and expense.
“ Fourth. That the tenant shall not assign this agreement or under-let or under-lease the premises or any part thereof, or make any alterations in the premises without landlord’s consent in writing, or occupy or permit or suffer the same to be occupied for •any business or purpose deemed disreputable or extra-hazardous on account of fire, under the penalty of damages and forfeiture.”
“ Ninth. And the tenant further covenants that he will, during the term of this lease, keep and sell on the said premises certain beer known as ‘ George Ehret’s Beer ’.”
It is urged that as the lease is under seal, it cannot be modified by a parol agreement. And this is so if
The lease in its terms provides that the property is to be used and occupied as a 11 saloon and hotel.” While the language does not say only for such purposes, or not for any other purpose, that is immaterial. Express words of restriction are not necessary where the language used shows that no other use was to be permitted than that specified. In such a case there is an implied covenant not to use the premises for any other purpose. Weil v. Abrahams, 53 App. Div. 313.
There is a conflict of authority in the various states upon the question of whether the adoption of a constitutional amendment or a statute enforcing prohibition, after the making of a lease, terminates it, where
The same principle is involved in eases holding that an act of Congress, or of the president of the United States done pursuant to the authorization of congress, fixing the price of certain articles at a less sum than had previously been agreed upon between parties, relieved them from the obligations of their contract. Boret v. Vogelstein & Co., Inc., 188 App. Div. 605; Standard Chemicals & Metals Corp. v. Waugh Chemical Corp., 194 id. 254. See, also, Mawhinney v. Millbrook Woolen Mills, 172 N. Y. Supp. 461, 467.
Some courts, while agreeing with the rule that if the permitted use of the leased premises is prohibited by subsequent statute the lease is terminated, hold that this is not so if the tenant may continue to use the premises for any purpose. Conklin v. Silver, 174 N. W. Repr. 573. Upon this theory, although premises are to be used only as a saloon, inasmuch as such use permits the sale of cigars and non-intoxicating drinks as well as intoxicating ones, the subsequent prohibition against the sale of the latter has been held not to cancel the lease. O’Byrne v. Henley, 161 Ala. 620; Matter of Bradley, 225 Fed. Repr. 307. So a lease for a “ saloon and restaurant ” has been held not to be terminated because the tenant could still continue the restaurant (Standard Brewing Co. v. Weil, 129 Md. 487); and upon the same principle a lease asa“ hotel and bar-room ” has been held not to be affected (Lawrence v. White, 131 Ga. 840); likewise one for a “ cafe ” — as that was held to be an eating place (Proprietors Realty Co. v. Wohltman, 112 Atl. Repr. 410). But the true rule is believed to be that if the statute adopted after the making of the lease deprives the tenant of the beneficial use of the prop
In the case at bar the lease, as has been noted, provides that the premises are to be used as a “ saloon and hotel,” and it covers, in addition to the buildings, many specific articles of personal property, including: “ bar, back-bar, steam table, motor, seltzer machine, ninety chairs, twenty-four tables, lunch counter, cash register,- twenty beds, springs, mattresses, bedding, furnishings, two gas ranges, one coal range, three iceboxes, ten beer pumps and pipes ” and also all table, dish, and bed linen, glassware, and cooking utensils. From the lease there would appear to be twenty bedrooms in the premises. The premises of course were to be used as a hotel, but under the terms of the lease, only in connection with the maintenance of the saloon. Under the provisions of the Liquor Tax Law in effect
Since this opinion was written, our attention has been called to the case of Doherty v. Monroe Eckstein Brewing Company, 115 Misc. Rep. 175. The decision in that case is in exact accord with our views and is an additional authority in support of our determination.
Judgment reversed and new trial granted, with thirty dollars costs to appellant to abide the event.
Kelby and Manning, JJ., concur.
Judgment reversed, and new trial granted, with costs to appellant to abide event.