American Concessionaires, Inc. v. City of Long Beach

255 A.D. 981, 8 N.Y.S.2d 281, 1938 N.Y. App. Div. LEXIS 6149

Opinion

In an action to recover damages for violation of the covenants of a lease, granting plaintiff exclusive concessions in a public park maintained and operated by defendant, wherein it is alleged in the complaint that defendant permitted others to operate in competition with -plaintiff, order dismissing complaint for insufficiency and judgment entered in accordance therewith reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The obligations assumed by the defendant under the lease in question are no different from those assumed by an individual under like circumstances. (City of New York v. Pike Realty Corp., 247 N. Y. 245; City of New York v. Delli Paoli, 202 id. 18.) It is alleged that defendant “ permitted ” others to engage in competition with plaintiff. A violation of the covenant of the lease may not necessarily be dependent upon the payment of a fee for a lease or license by such others. The facts must be determined in this respect. The local law of the city of Long Beach which is invoked is not applicable to a cause of action based upon breach of contract. (Bradley v. Village of Union, 164 App. Div. 565; affd., 221 N. Y. 591; Marcy v. City of Syracuse, 199 App. Div. 246.) Hagarty, Davis, Adel aud Taylor, JJ., concur; Lazansky, P. J., concurs in result.