50 Misc. 639 | N.Y. App. Term. | 1906
The plaintiffs recovery, upon the theory that the agreement between the parties was a lease and not a mere license, is, in our opinion, to be upheld.
This agreement gave to the defendants, the use of the roof of the premises for advertising, a restricted purpose, but one which none the less involved the defendants’ possession of and dominion over a substantial part of the realty. The transaction comprised the construction and maintenance of the defendants’ own structure for signs, not the mere placing of signs upon a wall, as in the case of Goldman v. New York Adv. Co., 29 Misc. Rep. 133, nor the simple right to affix advertising matter to a structure already erected upon a roof, as in Reynolds v. Van Beuren, 155 N. Y. 123; and the ground of distinction is noted in O. J. Gude Co. v. Farley, 28 Misc. Rep. 184, where the opinion was expressed by this court that an identical agreement was to be construed, under these circumstances; not as a license but as a lease.
The defendants having remained in possession, the lease endured for the period covered by the demand in suit, and there is no ground for our disturbing the result of the trial upon the conceded facts.
Scott and Truax, JJ., concur.
Judgment affirmed, with costs.