284 A.D. 979 | N.Y. App. Div. | 1954
In an action to recover damages for breach of the covenant of quiet enjoyment contained in a sublease; for breach of an alleged oral agreement to reimburse plaintiff for loss sustained or expenses incurred in removing factory equipment from the demised premises, and in making alterations to the premises; and for fraud, plaintiff appeals from a judgment in favor of defendants, rendered after trial before an official referee. Judgment affirmed, with costs. The judgment in a prior action brought by the owner of the premises against all the parties to the present action determined that the sublease was null and void because the use for which it was given was in violation of the certificate of occupancy for the property. That judgment was binding on plaintiff in this action. (jSchuylkill Fuel Gorp. v. Nieberg Realty Gorp., 250 N. Y. 304; Cook v. Conners, 215 N. Y. 175.) Accordingly, plaintiff could not properly have been permitted a recovery on the cause for breach of covenant of quiet enjoyment, for no cause may be predicated on an illegal contract. (Mart v. City Theatres Go., 215 N. Y. 322.) In Municipal Metallic Bed Mfg. Gorp. v. Dobbs (253 N. Y. 313), the complaint was upheld because of a special agreement for indemnification contained in the lease there in question, and not upon the covenant of quiet enjoyment. With respect to the remaining two causes of action, we do not find that the findings of fact are contrary to the weight of the evidence. Nolan,