Hyperlawhypertext legal database Knoepfel v. Kings County Fire Insurance 39 N.Y. Super. Ct. 553

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Knoepfel v. Kings County Fire Insurance

39 N.Y. Super. Ct. 553 7 Jones & S. 553 Court N.Y. Super. Ct. Decision date 1875-06-07 English

Delivered by Freedman, J.,

Contents

Majority

p. 553
WILLIAM H. KNOEPFEL, Plaintiff and Respondent, v. THE KINGS COUNTY FIRE INSURANCE COMPANY, impleaded with ALANSON TRASK, Defendant and Appellant.

Headnote

landlord and tenant.
1. Signs, agreement as to—construction oe.
M., by his agent- J., leased certain premises to an Insurance Company. The lease contained the following clause :
“ The one-third, at least,-of the front water-table ... is reserved for signs for the tenants of the rear offices, and such amicable arrangement for signs on the side entrance as may be agreed for.”
M., by the same agent, afterwards leased the offices in the rear to K., and at the time of delivery to K. of his lease, also handed him a slip of paper on which was printed the above clause in the lease to the Insurance Company, so that K. might understand what rights he had, and what the conditions of the lease to the Insurance Company were.
On both leases was endorsed the following rule : “No sign, advertisement, or notice shall be inscribed, painted, or affixed
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on any part of said outside or inside of said building, except of such color and size in such places upon or in said building as shall be first designated by said lessor and endorsed hereon.”
Held,
That K. took subject to the above clause in the lease to the Insurance Company ; and as to signs on the side entrance was bound to endeavor to effect an amicable arrangement with the Insurance Company.
3. ACTION IN EQUITY BY K. RESPECTING SIGNS.
I. As to signs on side entrance.
1. Hot maintainable, unless K. has used all reasonable endeavors and exhausted all the means in his power to bring about an amicable arrangement with the Insurance Company.
a. What relieves him not from this duty.
He having been insulted by one of the officers of the company about a month before he attempted to put up his signs (even if such were the fact), will not.
8. As to signs on water-table.
1. Hot maintainable when the Insurance Company at all times-conceded to the plaintiff in respect thereof all that the court finds him entitled to.
Before Monell, Ch. J., Freedman and Sedgwick, JJ,
Heard May, 1875;
Decided June 7, 1875.
J. , the agent of M., who was the owner of certain premises consisting among other apartments of a basement, leased to the defendant, The Kings County Fire-Insurance Company, the front part of the basement to be separated from the rear part by a partition running across the basement, mid-way between the third and fourth windows in Liberty place, with a door about mid-way of said partition, to be used by the tenants-who might occupy the rear part of the basement, and who were to have the free use of the passage to and from their offices to Liberty street in the front.
The lease contained this clause: “The one-third at least of the front water-table on Liberty street is re
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served for signs for the tenants of the rear offices, and. such amicable arrangement for signs on the side entrance as may be agreed on.”
This lease was dated February 10, 1874, and the demised term commenced April 1, 1874.
On February 12, 1874, the owner, through J., his agent, executed a lease to plaintiff for a term to commence May 1, 1874, of the rear half of said basement.
There was printed on the back of each lease the rule which is set forth in the head-notes.
Plaintiff claiming to be entitled to take the third of the water-table reserved for the tenants in the rear out of the middle thereof, and also to have an absolute right to place a sign on the east side of the entrance-door on Liberty street; and claiming that the defendants had interfered, and threatened further to interfere with him in the exercise of his rights, commenced an action against them to obtain a perpetual injunction against them, restraining them from such interference. In his complaint he alleged that the sign which he intended to place on the door-frame and water-table had been approved of by J., who designated a place on the eastern side of the front door where he should affix the sign, in which place he was about to affix said sign, when interfered with as above stated.
The court below found that the plaintiff was entitled, as a matter of right, to the one-third of the-water-table, opposite the interior entrance-door, and to-a sign on the eastern side of the said door-way, of the superficial dimensions of the sign exhibited by plaintiff" at the trial, but so affixed and attached as not to interfere with, or to obstruct the use and occupany of such entrance, for purposes of ingress or egress ; and was entitled to a perpetual injunction, restraining the defendants from interfering with, or molesting, or hindering plaintiff’s signs, or his rights in such signs, as he afore
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said is entitled to, besides his costs, disbursements, and allowances.
From the judgment entered in conformity with this decision, the Insurance Company appealed.
Sullivan, Kobbie & Fowler, for the appellant.
Davis & Lyon, for the respondent.

wrote for affirmance, holding that the clear weight of the whole evidence at the trial was, that whatever rights plaintiff acquired with respect to signs, he derived from a memorandum contained on a slip of paper handed to him by J., at the time of the delivery of the lease to the plaintiff, which memorandum consisted of that clause in the lease to the Insurance Company which is set forth in the head-note ; and in reference to which J., in a deposition taken before trial, which was read by the consent of both parties, testified that he handed it to the plaintiff so that he might understand what rights he had, and what the conditions of the lease to the Insurance Company ; that as to the signs on the water-table, it appeared that the Insurance Company had at all times conceded to the plaintiff all that the court below had found him entitled to ; that as to the signs on the side entrance, it also appeared that plaintiff would not make, and never made, the slightest attempt at a negotiation with the Insurance Company in respect thereto, because, as he said, he had been insulted by one of the officers of the company as far back as March, 1875; that, therefore, under the propositions stated in the head notes, the compilant should have been dismissed by the court helow ; and that consequently the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Monell, Ch. J., and Sedgwick, J., .concurred.