152 Misc. 41 | N.Y. Sup. Ct. | 1933
On July 2, 1928, the Vanderbilt Construction Company, not a party to this action, leased to Charles Cory & Son, Inc., predecessor in interest of the defendant Charles Cory Corporation, for a term of twenty-one years, certain premises located at the corner of Varick and King streets, borough of Manhattan, city of New York, and known as No. 183 Varick street. On July 3, 1928, the Vanderbilt Construction Company conveyed the fee of the premises to the defendant Ramsgate Realty Co., Inc. On October 1, 1928, Charles Cory & Son, Inc., with the consent of the defendant Ramsgate, sublet to one Louis Deneroff, plaintiff’s assignor, all the space on the first floor of the premises. The sublease, among other things, provided that the premises were to be used solely for the purpose of carrying on a modern drug store and luncheonette, and that during the demised term Cory would not lease any portion of the building for a similar purpose.
On April 30, 1930, Ramsgate became the owner in fee of 181 Varick street, Immediately adjoining the plot which it already
The determination of this motion depends upon the answer to the question, what were the obligations of the defendants Cory and Ramsgate with respect to the covenant contained in the sublease of plaintiff’s assignor? This covenant reads: “ The lessor Cory hereby covenants and agrees that during the term of this lease it shall not lease any portion of the said building for any purpose or purposes similar to those of this lease.”
Liability under this covenant is expressly imposed on the lessor Cory, alone, and limited to its acts with respect to “ said building,” namely, 183 Varick street. The expressed intention of the parties at the time the covenant was made must govern. (Gillet v. Bank of America, 160 N. Y. 549; Kitching v. Brown, 180 id. 414; Booth v. Knipe, 225 id. 390, 396; King v. Hudson River Realty Co., 210
The covenant entered into by the defendant Cory was not a covenant against the acts of its lessor Ramsgate or third parties, but only against its own acts. There is no allegation that the defendant Cory was a lessee or owner of any part of the new building nor is there any allegation that the defendant Cory has or had at any time any connection with or control over those in possession of the new building. Cory, therefore, could not be held responsible for any act on the part of the defendant Ramsgate alleged to have been in violation of this covenant. The mere fact that Cory consented to the use of one of the walls of the building by the owner of 181 Varick street cannot be construed as a violation of the restrictive covenant. The erection of the new building was not a violation of the covenant. The consent to use the wall was not a violation; in fact, plaintiff makes no such complaint. The violation, if any, was the making of the lease by Ramsgate to Graybar. To such act Cory was not a party. The complaint does not allege that Cory knew to what use Ramsgate was going to put the building.
No fraud is alleged nor are any facts set forth from which it might be adduced that a conspiracy was entered into between the defendants. The complaint merely alleges conclusions — “ induced, aided, abetted, encouraged and rendered possible.” The use of this language, unassisted by allegation of facts, does not show a tortious act on the part of the defendant Cory. (Park & Sons Co. v. National Druggists Assn., 175 N. Y. 1; Woodv. Amory, 105 id. 278; Morton v. Weet, 142 Misc. 473.) Plaintiff, accordingly, is not entitled to any relief against that defendant.
The motion to dismiss the complaint is accordingly granted.