Thomy v. Belcher

Headnote

Thomy v. Belcher, 155 App. Div. 877 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 8, 1913, affirming a judgment in favor of defendants entered upon a decision of the court on trial at Special Term. The relief sought is an injunction restraining the defendants, their successors and assigns from trafficking in liquors on a parcel of land formerly owned by the parties to the action as tenants in common, the possession of which had passed to the

defendants Belcher under a partition agreement. The plaintiffs contend that as a consideration for the partition agreement the defendants Belcher entered into a prior oral agreement not to traffic in liquors on the parcel in question while the plaintiff Thorny was engaged in that business on the adjoining property. The defense is (1) a denial of the oral agreement; (2) that there was a written agreement for partition giving defendants Belcher exclusive control of the parcel in question which cannot be varied by paroi agreement.