128 N.Y.S. 666 | N.Y. App. Term. | 1911
The plaintiff entered into an agreement with the defendant whereby it assumed to “lease” to the defendant the sign,
A similar agreement has been construed by the Appellate Division of this department in the case of United Merchants’ Realty Company v. New York Hippodrome Co., 133 App. Div. 582, 118 N. Y. Supp. 128. The court there intimated that under this agreement no exclusive possession of the “landlord’s” property was given up, and that therefore the agreement never created the relation of landlord ana tenant, but rather the relation of licensor and licensee. The same interpretation was placed upon a similar agreement by the Court of Appeals in the case of Reynolds v. Van Beuren, 155 N. Y. 122, 49 N. E. 763, 42 L. R. A. 129. Relying upon these cases, the defendant now claims that the agreement created only a license to use the roof of the building, and that a license is necessarily revocable at the pleasure of the licensor, and imposed no burden upon the licensor, and that the agreement could therefore impose no burden upon the licensee, but that the licensee could abandon its benefits and refuse payment thereafter.
The defendant has failed to establish that the plaintiff refused its employes access to the roof. The defendant’s testimony on this point was stricken out, because no connection between the person refusing such access and the plaintiff was shown. Moreover, the defendant had apparently the same means- of access which it considered sufficient for three years prior to the alleged refusal.
The judgment should therefore be affirmed, with costs. All concur.