233 A.D. 689 | N.Y. App. Div. | 1931
Judgment in so far as appealed from unanimously affirmed, with costs to each of the respondents against the appellants. In our opinion, upon the facts found by the trial justice, as stated in findings of fact numbered 25, 28, 29, 30, 33, 38, 39, 40 and 64, for which there is support in the evidence, plaintiffs are estopped from denying the right of defendant Gardeneorner, Inc., to make the lease of store No. 3 to defendant The Great Atlantic and Pacific Tea Company for the sale therein, in connection with its general grocery, vegetable and meat business, of soda water in bottles, cake in small cartons selling for ten cents each and low priced candy specialties (fol. 225), and plaintiffs are not entitled to injunctive relief against Gardeneorner, Inc., inasmuch as there is no evidence that defendant The Great Atlantic and Pacific Tea Company has sold or threatens to sell any other merchandise described in the negative covenant in plaintiffs’ lease. The court found (fol. 329) that plaintiffs’ lease was not recorded and there is no proof that defendant The Great Atlantic and Pacific Tea Company had actual or constructive notice of the covenant in plaintiffs’ said lease until about April 12, 1929, in the form of a letter from the plaintiffs nearly two months after the execution and delivery of its lease of store No. 3, and after it had taken possession and expended nearly $10,000 in alterations and improvements, and it is, therefore not bound by the terms of said lease. (Waldorf-Astoria Segar Co. v. Salomon, 109 App. Div. 65; Baumann & Co. v. Manwit Corp., 213 id. 300; Vogeler v. Alwyn Improvement Corp., 247 N. Y. 131.) Finding of fact No. 28 in the decision of the trial court is modified by changing the date from February 13, 1929, to February 19, 1929, and proposed finding of fact No. 40 of defendant The Great Atlantic and Pacific Tea Company is found. Findings inconsistent with this decision are reversed. Present — Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ. Settle order on notice.