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Greimel v. O'Conor

119 N.Y.S. 660 Court N.Y. Sup. Ct. Decision date 1909-04-09 English

Delivered by HENDRICK, J.

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p. 660
GREIMEL v. O’CONOR.
(Supreme Court, Special Term, New York County.
April 9, 1909.)

Headnote

Injunction (§ 118*)—Summary Proceedings—Oral Contract to Lease—Specific Performance—Complaint.
A complaint for an injunction restraining defendant from bringing summary proceedings to oust plaintiff from certain premises on the expiration of his lease, alleging a prior oral agreement to grant plaintiff a new lease for two years at the expiration of the existing one at a specified rental, which defendant thereafter repudiated, stated a cause of action, though the promise was unenforceable under the statute of frauds (Real Property Law [Laws 1896, pp.. 592, 602, c. 547] §§ 207, 224).
• [Ed. Note.—For other cases, see Injunction, Dec. Dig. § 118.*]
•For other cases see'same topic & § number in Dec. & Am.-Digs. 1907 to date, & Rep’r Indexes
Suit by Frank Greimel against John C. O’Conor. On application for a preliminary injunction.
Determination modified and affirmed by the Appellate Division, 117 N. Y. Supp. 629 .
Application granted.
See, also, 118 N. Y. Supp. 1053 .
Louis Boehm, for plaintiff.
John C. O’Conor, for defendant.

Plaintiff moves for an injunction restraining defendant, as owner of the premises in question, from bringing summary proceedings to oust plaintiff on the expiration of his lease on May 1, 1909. In the complaint plaintiff alleges that on July 1, 1908, defendant gave him an oral promise to lease him the premises for two years from May 1,1909, at a rental of $100 per month, which he now declines tó do. That allegation alone is a meager basis for specific performance. The promise is void by statute. Real Property Law (Laws 1896, pp. 592, 602, c. 547) §§ 207, 224.

The complaint alleges that, before plaintiff bought the saloon fixtures from a third party, he was informed by one Bowler, who was defendant’s agent, that plaintiff could have a two years’ lease, and that, relying upon Bowler’s promise of a lease, he had expended $600 in refitting the saloon, and has established a profitable business. There are cases in which a court of equity has found a way around the statute of frauds and enforced a promise to execute a lease. Such exercise of equity power is generally connected with a valuable' consideration moving to the landlord, and the court’s action is designed to prevent the perpetration of a fraud on the lessee. The basis of the jurisdiction thus invoked is the prevention of a fraud by the landlord upon the lessee. In the moving papers the allegations from which fraud may be inferred are not conclusive, but out of deference to precedent the injunction may issue. Noble v. McGurk, 16 Misc. Rep. 461 , 39 N. Y. Supp. 921 ; Woods v. Garcewich, 67 App. Div. 56 , 73 N. Y. Supp. 472 .

Motion granted.

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