115 N.Y.S. 465 | N.Y. App. Div. | 1909
Appeal from an order granting an in junction pendente lite, providing that the defendant hotel company and the Hew York Taxicab Company be enjoined from directly or indirectly exercising the privilege of supplying carriage, taxicab and motor cab service at the Hotel Albany,- and from using the telephone and telephone booth installed by the taxicab company in said Hotel Albany in-soliciting orders for supplying carriages or taxicabs or motor cabs, and from directly or indirectly interfering with the plaintiff and the Union Taxicab Auto Service Company in the exercise and enjoyment of said carriage, taxicab and motor cab service privilege at said hotel.
On the 10th of March, 1908, the hotel company entered into the following contract with Pimot and Lynch: “ The party of the first part hereby agrees to lease of privilege of carriage services and taximeter cab services for the sum of ■ * * * $1,500 per year or
On the 23d of May, 1908, Lynch and Pimot entered into an agreement with the Union Taxicab Auto Service Company as follows: “ The party of the first part hereby agrees to sublease the privilege of carriage and auto taxicab services for 10$ commission of all calls obtained at the Albany Hotel stand for the term of one (1) year from date. * * * The party of the second part hereby agrees, to furnish the taximeter cabs for the Hotel'Albany, * * * and also agrees to permit the party of the first part to examine the drivers’ sheets on demand.”
Subsequently Pimot, purporting to act for his partnership, for $400 signpd a release of said contract with the hotel company. The hotel company notified the license bureau that it had revoked its consent to the stand in front of the hotel and made an arrangement with the Hew York Taxicab Company. This action is brought in equity for an injunction against interference with the rights alleged to be existing under said two papers, and the learned court has granted the injunction upon the ground that said papers constitute a lease, and in accordance with the line of authorities which permit injunctive action in support of a lease.
The agreement between Pimot and Lynch and the hotel company is not a lease. As a license or privilege it is not exclusive. It is not shown that irreparable damage will ensue upon a. breach thereof.- If the contract has been breached a legal remedy is afforded. It is difficult to conceive of a lease by a private individual of a portion of a public street. In Hess v. Roberts (124 App. Div. 328) the paper in consideration provided that plaintiff should have the exclusive privilege of the public stenographer’s office situated in the Murray Hill Hotel. We said : “ This instrument is called a lease, although it is nothing of the kind; it is a mere agreement to allow a stenographer and typewriter to carry on business .in a hotel.” Further, “ But assuming that the defendant had no right to revoke the agreement and prevent plaintiff from
That was a stronger case for plaintiff than the one at bar, but this court vacated the injunction. I find no warrant for the order appealed from, and especially so far as affects the appellant, the Hew York Taxicab Company, which was not a party, to any of the agreements sued on.
The order appealed from should be reversed and the injunction vacated, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.