200 A.D. 610 | N.Y. App. Div. | 1922
Joseph F. Wade was the owner in fee of premises known as No. 1315 Surf avenue, Coney Island, in the borough, of Brooklyn, city of New York. On April 14, 1920, he made a written lease to defendant of the entire roof of the building on said premises for
On March 8, 1921, defendant notified Wade that it intended to carry out the terms of the lease (evidently referring to the renewal thereof) and that it would forward its check before May first. On April second defendant sent to Wade its check for $115 for one year’s rent in advance under the lease, from May 1, 1921, to May 1, 1922. This check Wade returned on May 3, 1921, with a note stating that he could not accept the check as he no longer had possession of the premises.
Meantime, in December, 1920, Wade leased the entire premises, No. 1315 Surf avenue, to Peter Drucker. Drucker claims that he took possession subject to no subleases whatsoever. Wade claims that he leased to Drucker subject to a lease to one H. Wildman. On February 23, 1921, Drucker made a lease to plaintiff to commence on April 1, 1921, “ wherein and by the terms of which agreement,’’ as Drucker claims, “ the E. C. Maxwell Co. leased from me the privilege to use two (2) certain bill boards on the roof of the premises and the side of the brick building on said premises; that thereafter the E. C. Maxwell Co. took possession of the portion of the premises leased and proceeded to advertise thereon the goods, wares and merchandise of certain corporations, and upon the front sign, facing Surf Avenue, the E. C. Maxwell Co. advertised the Adams Chewing Gum.”
On May 10, 1921, Drucker claims that certain employees of defendant entered the premises in question and asked for the privilege of ascending to the roof in order to repaint the signs on the roof for defendant, whereupon Drucker told them it was impossible, as he had leased plaintiff the exclusive right to the signs, and thereafter he found that certain of defendant’s employees had reached the roof and were repainting and defacing one of the signs, whereupon he. had the employees arrested. In court defendant’s representative agreed to temporarily refrain from interfering with the signs until plaintiff took action, but on May 13, 1921, defendant again threatened to repaint the signs.
The answering affidavit of the general manager of the defendant shows, among other facts:
“ That on or about the 1st day of May, 1920, the defendant sent its agents and employees to the said premises, and they entered upon the roof of the building described in the said agreement, Exhibit A, and painted on the sign located thereon a display advertising sign bearing the name of Thomas Cusack Company.
“ That at the time of the execution of the said agreement, Exhibit A attached to the answer, the said Wade was notified by the defendant that the defendant intended to use the said space on the roof of the building described in said agreement, Exhibit A, for the purpose of painting display advertising signs thereon for its customers, and that the defendant intended to enter into agreements with such customers for that purpose.
“ That on or about the 8th day of March, 1921, the said Wade informed the defendant that he had leased the entire building No. 1315 Surf Avenue, Borough of Brooklyn, City of New York, to Peter Drucker for the period of ten years from the first day of January, 1921. That at the time of the execution of the said lease to the said Drucker by the said Wade the said display advertising sign painted by the defendant was erected on the roof of the said building and contained thereon the name of the Thomas Cusack Company conspicuously painted on the front thereof and plainly visible from the adjoining street.
“ Deponent further says, on information and belief, that the said Drucker at the time of entering into the lease with the said Wade knew of the existence of the said advertising display sign painted by the defendant on the roof of the said building and knew that the defendant had entered into the agreement, Exhibit A attached to the answer, with the said Wade, and knew the purposes for which the defendant intended to use said space so rented.”
Further, that on or about the 29th day of April, 1921, the plaintiff caused the defendant, its agents and servants, to be ejected and removed from the said premises and notified it that the plaintiff would not thereafter permit or allow the defendant, its agents and servants, to enter upon the roof of the said building for the purpose of painting a display advertising sign thereon.
The signboards erected upon the roof of the premises were two in number; one faced Surf avenue and was thirty-five feet long by ten feet high; the other faced Fifteenth street and was forty-five feet long and ten feet high. They were securely fastened to the roof. On top of each signboard was a smaller sign, eight feet long and nine inches high, bearing in letters six inches high the defendant’s name. The name on each smaller board was plainly visible from Surf avenue, and they remained continuously in position until removed by plaintiff’s employees about April 1, 1921.
The injunction granted herein restrains defendant during the pendency of this action from painting, defacing, obliterating, taking possession of, obstructing, removing or in any wise interfering with the signs, advertisements and billboards located at premises No. 1315 Surf avenue, Coney Island, in the borough of Brooklyn, county of Kings, on the roof of said premises, or the sides of bhe building thereof, or from doing or suffering to be done any of the foregoing acts through any agent, servant, employee or other person.
We are of the opinion that upon the record herein the plaintiff was not entitled to the relief sought by it. Without passing finally upon the relative righbs of plaintiff and defendant in and to
The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Clarke, P. J., Laughlin, Page and Merrell, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.