Kaiser v. Cinberg — 130 A.D. 254

Majority

p. 254

Gustave W. Kaiser, Respondent, v. Louis Cinberg, Appellant.

Second Department,

January 22, 1909.

Headnote

Landlord and tenant — implied covenant — right to rear exit — revocable license — injunction.'

Although the lease of ,a building rented for the express purpose of conducting a moving picture show provides that repairs shall be made according to the laws of the municipal building department, the landlord cannot be held to have covenanted to allow the lessee an exit from the rear through property owned by him but not included in the lease, even though the Building Code requires buildings used for such exhibitions to have a rear exit to a street.

Where, after the execution of such lease, the landlord, without consideration, ' givies permission to the lessee to use other property in the rear as means of exit to comply with the Building Code, the agreement creates a mere license revocable at the landlord’s pleasure, and hence, where the latter insists on lock ing a gate from the rear entrance during repairs made by the tenant, the latter ■' is not entitled to an injunction restraining the landlord from keeping the gate closed.

Appeal by the defendant, Louis Cinberg, from an order of the Supreme Court, made at the Kings County Special Term and entefed in the office of the clerk of the county of Kings on the 10th day of July, 1908, granting the plaintiff’s motion for sp injunction pendente lite, and also from an order entered in said clerk’s office on the 17th day of July, 1908, modifying the first order»

p. 255

Edward A. Brown, for the appellant.

Harry H. Altman [David T. Smith with him on the brief], for the respondent.

This is an appeal by the defendant from orders of the Special Term for an injunction pendente lite. The defendant leased to the plaintiff certain premises on Fulton street in the borough of Brooklyn for the express purpose of conducting a moving picture show. Shortly after the execution of the lease the pilaintiff found that in order to secure the approval of the department of public buildings he must have a rear exit to these premises leadiñg to a street, and that such approval was a prerequisite to his license to maintain this business. Thereaf ter, Upon 'request of the plaintiff and of the superintendent of buildings, the defendant made .affidavit that as owner of the premises leased as aforesaid he granted permission to the plaintiff to use the rear of the said' piremises for the purpiose of an exit to the said moving picture show. The pilaintiff complains that the said exit is now closed by a locked iron gate, which renders such exit useless; that the building department will not and had refused to pass its permit unless the lock and the gate . are removed, whereby the plaintiff was forced to stop) his work upon the piremises, and asks for judgment to restrain the defendant from interfering with the said gates and from preventing pilaintiff from continuing his work of alteration according to the terms of the contract, and from ’ keeping said lock on the gates. The learned Special Term granted the injunction pendente Ute in general accord with the prayer of the complaint.

I am of opinion that upon the record before us "it is very doubtful whether the pilaintiff has any cause of action, against the defendant. There is no contention that the lease embraces the premises whereon this exit exists or that it contemplates the use' of such exit in connection with the leased premises. It does not even appear that at the time of the execution of the lease for the use of the premises for a moving picture show it was in the contemplation of the' parties that such Use necessarily required the use of the exit in question. The lease is not in the record. The plaintiff points out

p. 256

that the lease provided that the repairs should be done according to' the laws of- the building department, but the requirement by that department for an exit into a street, which admittedly must pas.s through property outside of the lease, is hardly to -be construed into a covenant that , the plaintiff perforce of his lease shall have such rigid of passage. Moreover, the plaintiff in his affidavit but deposes that such exit could only “ be conveniently ” (therefore not necessarily) “ had through the land adjoining the said stores and which adjoining land.belongs to this defendant.” - There is no contention that this permission, given about a month after the execution of the lease, to permit passage through this exit across the land of' the defendant into the street was granted upon any express consideration, and the defendant deposes that there was none. I cannot see that there is any consideration for such user. For aught' that appears such -permission was a mere license revocable at the pleasure of the defendant, which conferred no rights on the plaintiff after . such revocation. (Matter of Trustees of Village of White Plains, 124 App. Div. 1 , and authorities there cited.) It is immaterial that the plaintiff had made any expenditure on the faith of the continuance of such permission. (Crosdale v. Lanigan, 129 N. Y. 604 ; 1 McAdam Landl. & Ten. [3rd ed.] 179.) I think that the in junction order, in so far as it interferes with the defendant in the control of any of his property upon his own land, exclusive of the premises- subject to the lease, was wrong and tliat, therefore, it must be modified accordingly.

T'may comment that the revocation of the license does not- indicate any bad. faith on the part of the defendant in view of his affidavit that lie locks the gate to prevent access to his own premises by strangers, and that he has stated to the plaintiff and that he restates in his affidavit that as soon as the plaintiff starts in business or desires to use the gate he will remove the lock and permit use of the gate by the -plaintiff if he .will neither remove'it nor the iron railing.

Hirschberg, P. J., Woodward, Gaynor and Miller,, JJ., concurred.

Order modified in accordance with opinion and as modified affirmed, with costs. ■

Cases cited

Crosdale v. Lanigan 129 N. Y. 604 N.Y. 1892-01-20 p. 256