83 N.J. Eq. 126 | New York Court of Chancery | 1914
Complainant is the lessee oí certain real estate in Atlantic City; his term will expire December 27th, 1914. Defendant is the owner of the reversion through a grant from complainant’s lessor; complainant pays his rent to defendant. The premises, which are admittedly covered by the lease held by complainant, include a store building facing on a street and living rooms above the store, and also a space in the rear of the store which has been vacant until recently. It is that part of the leased premises which is in the rear of the store which occasions the present controversy.
It is conceded that defendant sought permission from complainant to erect a building in the nature of an annex to the store on that part of the leased premises in the rear of the store, and that complainant acceded to defendant’s request.
Defendant has erected the building and it is now completed, except as to its interior. Complainant claims that the building which has been erected by defendant is essentially different from the building which he authorized, and has accordingly revoked his consent. An injunction is now sought by complainant to compel defendant to, stop further work on the building and to prevent its occupancy or use by defendant.
The answer and answering affidavits filed by defendant set forth a copy of a written consent for the erection of the building signed by complainant, and assert that the building in all essential respects conforms to plans agreed upon by complainant and defendant.
The consent for the erection of the building, which was signed by complainant, is as follows:
“Atlantic City, N. J., Dec. 1st, 1913.
“X hereby agree to allow Mr. A. F. Halpheh to build an addition in the rear of my store. '
“J. Polakoff.”
It will thus be perceived that complainant bases his right to relief upon his revocation of the license, whereas defendant contests complainant’s right of revocation.
In the present case a memorandum of the authorization was reduced to writing and signed by the party to be charged; the fifth section of our statute of frauds was to that extent complied with. Indeed the bill filed by the licensor asserts that
It will he observed that the written authorization is wholly silent touching the kind of a building to he erected by defendant, and both parties agree that their stipulations included that element. The situation thus presented is the existence of a separate oral agreement as to matters touching which the writing is wholly silent and which are not inconsistent with its terms, and it is also obvious that the writing was not intended by the parties to embody the whole agreement. In this situation the court is permitted to consider the evidence offered by the parties touching these details so agreed upon between them. This evidence satisfies me that the building which defendant has erected is substantially and essentially in accordance with the agreement of the parties, and that the agreement contemplated not only the erection of the outside walls
No cross-bill has been filed by defendant, and the single question now presented is whether complainant is entitled to an injunction pendente lile to prevent defendant from finishing the interior of the building and using it in the manner stated. I will advise an' order denying a preliminary injunction.