118 N.Y.S. 128 | N.Y. App. Div. | 1909
Lead Opinion
The plaintiff, being the owner of premises on the corner of Thirty-fourth street and Broadway in the city of Hew York, entered into, an agreement with the defendant whereby the plaintiff agreed to let and the defendant agreed to take “ all of the roof on the premises known as Ho. 1313 Broadway, corner 34th Street, Borough of Manhattan, City of Hew York, for a term of two years, commencing on the first day of December,, 1905, and ending on the first day of December, 1907, said roof and space above it to be used solely for the purpose of erecting thereon a bulletin board for displaying advertising of a lawful nature; ” and the defendant agreed to pay to the plaintiff in equal monthly installments in advance a yearly rental of $2,000. It was further provided that the defendant should have the right to equip said bulletin board with the necessary equipment, consisting of wires and such other things as might be necessary or incidental to erecting said sign, provided the defendant obtains the requisite consents from the municipal departments and the board of fire underwriters. And for the purpose of erecting and maintaining said sign the defendant -'was to have access to the roof during 'business hours. The defendant was to keep the plumbing work and other parts of the roof in repair at its own expense and plaintiff reserved the right to enter upon said roof and make any improvement it might require or place skylights thereon at any time. The case was tried upon an agreed statement of fact from which it appeared that the defendant entered upon the roof of this building and occupied the same in accordance with the terms of this agreement and caused to
Whether or not this, agreement constituted a lease of the roof of this building is a question not free from doubt, but I am inclined to think that the conventional relation of landlord and tenant did not exist. The fact that the parties used the words “ let ” and “ landlord ” is not conclusive. The plaintiff let to the defendant and the defendant agreed to take all of the roof of the- premises, said roof and space above it to be iised solely for the purpose of erecting thereon a bulletin board for displaying advertisements of a lawful nature, for which privilege the defendant was to pay $2,000 a year. There was no specific property leased, but what seems to ' have been intended was a right to use the roof to erect upon it an advertising sign. The use to which the roof was to be put was strictly limited and the plaintiff reserved the right of access to the roof at all times.. The plaintiff agreed to give the defendant access to the roof during business hours, but such right of access was restricted to the' purpose of erecting and maintaining said sign or changing said sign or the equipment thereof from time to time. There was -no right of re-entry reserved and none was necessary as the plaintiff had the right of access to the roof ■ at all times. There was no covenant to deliver possession of the premises at the expiration of the agreement, and no possession of the premises was given
Under the circumstances here disclosed, whatever may be said to be the relation between the parties during the continuance of the agreement, the fact that the defendant did not remove the bulletin board from the top of the plaintiff’s building during the time that the agreement was in force was not a holding over of the premises which entitled the plaintiff to elect to contiriue the agreement for another year. As a matter of fact the defendant never was in possession of any of the plaintiff’s property. It acquired a right for a limited period to erect a bulletin board upon the plaintiff’s property and maintained upon that bulletin board certain advertisements with
It follows that the determination of the Appellaté Term must be reversed and the judgment of the City Court affirmed, with costs to the defendant in this court and in the Appellate Term.
McLaughlin and Laughlin, JJ"., concurred; Houghton, J., dissented.
Concurrence Opinion
I concur solely upon the ground-that leaving the structure which was securely attached to the freehold did not constitute a holding over.
Determination reversed and judgment of City Court affirmed, with costs to defendant in this court and in the Appellate Term.