Brooklyn Majestic Theatre Co. v. Hyde & Behman Amusement Co.

In the decision of this case ( 163 App. Div. 917 ) the opinion of the Appellate Division in the First Department in Selwyn & Co. v. Waller ( 160 App. Div. 725 ) was not cited to this court by either party to this appeal, nor did this court take cognizance and base its decision on the authority thereof. In our opinion the case at bar is distinguishable from that ease as finally decided by the Court of Appeals,^[1] in the important element that here the plaintiff knew of the lease that was about to be made, and in fact had to expressly consent to it that it might be made, and did so consent. If it did not inquire as to the terms that were to be exacted under said lease, in our opinion, it has only its own failure to complain of. The motion for reargument is denied, without costs. Present—Jenks, P. J., Burr, Thomas, Carr and Stapleton, JJ.