53 A.D. 313 | N.Y. App. Div. | 1900
The plaintiffs are the landlords of a building on the southeast corner of Grand and Essex streets, in the city of New York, which is not quite completed. Plaintiffs leased to the defendants by a written lease entered into on the 22d of November, 1899, the corner store of the building to be used and occupied as an oil cloth store and dry goods store, which lease was to commence on May 1, 1900, and to continue three years. It is not disputed that the lease as at first prepared stated that the premises were 'to be used and occupied as an oil cloth store, and that subsequently, at the request of the defendants, the words “ and dry goods store ” were inserted in the lease, and that the lease was then executed. By a note dated November 21, 1899, the plaintiffs permitted the defendants to occupy the store from March 1, 1900, to May 1,1900, free of rent. It is claimed that the defendants are carrying on an auction business in violation of the covenant contained in the lease, and in violation of the understanding upon which the permission "to occupy the store between March 1 and May 1,1900, free of rent, was granted, and a preliminary injunction restraining the defendants from carrying on such auction business has been granted.
There was a covenant in the lease on the part of the defendants that they would “ neither place, or cause1 or allow' to be placed, any sign or signs of any kind whatsoever, at, in or about the entrance to said store, except in or at such place or places as may be indicated by the said landlords and consented to by them in writing.” It is alleged in the complaint that in violation or this covenant the defendants are displaying from, said premises an auctioneer’s flag, and they are by the order further restrained from displaying from said premises such flag or any other notice or signs indicating that auction sales are to take place on the premises, and from selling any goods upon said premises other than oil cloths of dry goods. The motion comes before the court on the return of the order to show cause why the injunction should not be continued during the pendency of the action ; the defendants resist the motion, claiming that the plaintiffs perfectly well knew at the time they executed the lease and granted the permission to the defendants to occupy the store rent free from March 1, 1900, to May 1, 1900, that the defendants were engaged