95 N.Y.S. 1053 | N.Y. App. Div. | 1905
The action was brought to enforce a negative covenant in a lease made by the defendant Salomon to the plaintiff, and the same relief is sought against the appellant Acker, Merrall & Condit Company upon the ground that that company has accepted a lease from the defendant Salomon in violation of the covenant in the lease to the
I think, in ascertaining the intention of the parties in making this lease, we are justified in looking at the- situation that existed and the business that the plaintiff was to carry on. By this covenant the defendants agreed not to rent any portion of the building and premises, of which' the store leased was” a part, to any one for the . purpose of wholesaling or retailing cigars and tobacco; and the landlord further agreed “not to consent to other tenants .sub-lhtting for purposes of - wholesaling and retailing cigars and tobacco.” This covenant'was not against renting the. store for the tobacco business, or to a tenant, who would Conduct á tobacco business there, but that the landlord would not lease the store.for the purposes of whole
After the execution of this lease, when ■ the plaintiff was in possession, of premises, the landlord executed to the defendant the Acker, Merrall & Condit Company a lease of the corner store which immediately adjoined the plaintiff’s store. This lease was dated March 4,1904, was for a term of five years from the 1st of May, 1904, with a covenant for a renewal of five years, and the premises were “ to be used by the tenant as one of its branch grocery stores, and for no other purpose.” The defendants’ lease was, therefore, to run during the whole period of the plaintiff’s lease, and the first question to be determined is whether the leasing of this store to the defendant Acker, Merrall & Condit Company, to be used as one of its branch grocery stores, was a violation of the covenant in the plaintiff’s lease that the landlord would not rent any portion of the premises for the purpose of wholesaling or retailing cigars and tobacco. The premises were to be used by'the Acker, Merrall & Condit Company as one of its branch grocery stores. That company is a corporation engaged in maintaining in the city of Mew York and elsewhere wholesale and retail grocery stores. It lias been in business many years, and the business that it conducts had an established character. It deals in groceries, wines and cigars, and in all of its branch stores, so far as appears from the evidence, cigars are sold at retail, and wholesale orders were taken which are filled from its wholesale store. "Cue of its officers testified that the corporation had sold from Sep
Upon this evidence we think it was clearly established .that the defendant Salomon had leased to the Acker, Merrall & Condit Company, and it had leased from Salomon- this store on the corner of Forty-second street and Fifth avenue for the purpose of selling cigars and tobacco, and that this- lease by Salomon was a violation of his covenant with the plaintiff that he would not lease any portion of his building of which- the plaintiff’s ■ store- was a part for -such purpose. It is idle to say that because the Acker, Merrall & Condit Company characterized its business as a-wholesale-and retail grocery business, and sold groceries, winés and liquors in addition to cigars, it was not selling cigars- and that its lease of the- store was not for the purpose- of selling cigars. We think, -therefore,-the court below was entirely justified in finding that this lease to the Acker, Merrall
It is now settled in this State that a court of equity will by injunction enforce such a negative covenant and restrain a party making the covenant from violating it.
In Standard Fashion Co. v. Siegel-Cooper Co. (157 N. Y. 60), in considering an action to restrain a violation of a covenant somewhat similar to the case at bar, the court say: “ When the inconvenience of the courts in acting is more than counterbalanced by the inconvenience of the public if they do not act, the interest of the public will prevail. But, even if, upon a trial of the action, specific performance of the contract in its entirety were refused as impracticable, still the bill should be retained as one permitting an injnnction, in the sound discretion of the court, to restrain the defendants from violating the negative and severable covenant of the SiegelCooper Company that it would not ‘ sell, or allow to be sold on its premises during the duration of this (the) contract any other make of paper patterns ’ than those of the plaintiff. The learned Appellate Division, one of the judges dissenting, overruled the demurrers on this ground, holding that the court should extend its,remedy as far as it is able, and thus prevent the principal defendant not only from making money by breaking its agreement, but from inflicting a double wrong upon the plaintiff by depriving it of the right to sell and conferring that right on a business competitor. We think this is a sound and just conclusion, because it will compel the SiegelCooper Company to either perforin its agreement, or lose all benefit from breaking it and at the same time will shield the plaintiff from part of the loss caused by the breach, if persisted in; ” and when that case was again before this court, a judgment in favor of the plaintiff, not only enjoining the Siegel-Cooper Company, but also the Butterick Publishing Company, which was the lessee of the SiegelCooper Company, from selling paper patterns upon the premises of the Siegel-Cooper Company, was affirmed. (44 App. Div. 121.) And this case has been followed by the Court of Appeals so far as it enforced by injunction a negative covenant in the case of St. Regis Paper Co. v. S. C. Lumber Co. (173 N. Y. 149). In this case the appellant accepted this lease with full knowledge of the covenant that the landlord had made with the plaintiff, and it executed before
I think the judgment was right and should be affirmed, with costs. -
O’Brien, P. J., Patterson, Laughlin and Clarke, JJ., concurred.
Judgment affirmed, with costs.