Merrick Theatre Co. v. Weissager Amusement Construction Co.

Headnote

Merrick Theatre Co. v. Weissager Amusement Constr. Co., 174 App. Div. 865 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 27, 1916, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. This action was brought to foreclose a hen for $16,958.38, the balance of á deposit of $18,500 given by plaintiff to secure its compliance with the terms of a lease of a theatre in premises on Boston road, borough of The Bronx, New York city. On July 24, 1913, defendant Weissager Company, as landlord, and plaintiff, as tenant, entered into a lease of the theatre in a building to be erected by the landlord on Boston road, for the term of twenty-one years after completion. The plaintiff went into possession of the theatre on March 1, 1914. On April 9, 1914, the Weissager Company, assigned the lease to the Haffen Company. On December 9, 1914, the plaintiff was dispossessed on a warrant duly issued in summary proceedings brought against it by the Haffen Company for failure to pay the November, T914, rent. The plaintiff in this action alleged that after such dispossession, and in December, 1914, the Haffen Company “ in its own name and behalf and for its own benefit, and not as agent for, nor in the name of, nor for the benefit of plaintiff, ” entered into a lease with an unknown person of the demised premises “ upon different covenants, terms and conditions, and for a longer term than provided ” for in plaintiff’s lease; that said new lessee duly entered into possession of the demised premises; and that “ by reason thereof plaintiff was discharged and released of and from any and all liability ” under its lease, “ and

thereupon terminated and rescinded ” the same, and became entitled to the return of the deposit, less rent for November, 1914. Defendants denied these allegations.