131 Misc. 827 | New York City Court | 1928
It appears that on the 2d day of February, 1925, the landlord executed an indenture of lease with one Charles A. Bronson as tenant, wherein the tenant agreed to use the premises for the purpose of “ conducting a first-class drug store and chemist establishment and for no other purpose.” Coincidently with the execution of the lease the landlord consented to the assignment of the lease by the said Charles A. Bronson to the tenant William de Lignemare and the latter agreed “ to pay and fulfill all of the terms, covenants and conditions of said lease, with the same force and effect as if the party of the third part [de Lignemare] had been named as a tenant in said indenture of lease.” The premises described in the lease are located at the northeast corner of Park avenue and Fifty-third street, in a district designated under the Building Zone Resolution as a “ residence district.”
It is the claim of the tenant de Lignemare that the petition must be dismissed on the ground that the lease was illegal and void as contravening the Zoning Law and the tenant de Lignemare demanded judgment against the landlord in the sum of $2,000, the amount deposited as security under the lease.
In some circumstances, authority is vested in the board of appeals to “ vary ” the Zoning Law. (See Greater N. Y. Charter, §§ 242-a and 242-b [added by Laws of 1914, chap. 470, as amd. by Laws of, 1924, chap. 295].) It follows, therefore, that the prohibition of the ordinance is not absolute. A lease providing for a use of premises, which use is prohibited by the Zoning Law, is not necessarily illegal where it appears that the board of appeals has the authority to vary the Zoning Law. In such case the question arises as to whether there has been a failure of consideration.
The doctrine of failure of consideration is predicated upon the
In Friedman Realty Co., Inc., v. De Stefan (220 App. Div. 661) a similar, although not an identical, question arose. In that case, the tenant had covenanted to secure permits from the local authorities. The Appellate Division found the lease to be valid and also found that the consideration had not failed as the tenant had not fairly performed his said covenant. While in the instant case there is no such covenant, as between the landlord and the tenant, the agreement to take subject to the Zoning Law placed the burden of compliance with the law and of obtaining the necessary variation and modification of the Zoning Law upon the tenant. It appears that an application for a variation of the Zoning Law was made to the board of appeals by the tenant Bronson, but later was withdrawn.
In Raner v. Goldberg (244 N. Y. 438), although not precisely in point, in discussing cases in which the court had permitted the rescission of contracts for failure of consideration, Judge Lehman said: “ Such cases have no application, even if we assume that all were correctly decided, to a case where the contract provides for a use which the parties understood when they made the contract
It appears from the testimony that the tenant continued to pay rent for many months without prosecuting to decision an application to the board of appeals. It seems under the circumstances herein that such payments constitute a waiver of the claim that the tenant may rescind the lease by reason of a failure of consideration. It is of course true that if this lease were illegal there would be no waiver of such illegality. However, the question herein is not with reference to the legality of the lease, but pertains merely to whether or not the consideration has failed. In such instance there can be a waiver and in the instant case there has been such a waiver.
The landlord is, therefore, entitled to a final order and to judg- • ment in the sum of $1,000, and to a dismissal of the counterclaim.