Blumenthal v. Kelsey

Appellate Division of the Supreme Court of New York

Blumenthal v. Kelsey

176 A.D. 369, 162 N.Y.S. 967, 1917 N.Y. App. Div. LEXIS 4721

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 19, 1917

StatusPublished

Cited by1 cases

This text of 176 A.D. 369 (Blumenthal v. Kelsey) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Blumenthal v. Kelsey, 176 A.D. 369, 162 N.Y.S. 967, 1917 N.Y. App. Div. LEXIS 4721 (N.Y. Ct. App. 1917).

Pincite

Opinion

Smith, J.:

Prior to April 28, 1911,. the plaintiff occupied as a tenant certain premises belonging to the estate represented by the defendant. Upon that day plaintiff executed and delivered to his landlord a paper reciting that in consideration of $100 and other good and valuable consideration he surrendered any lease or tenancy that he-, had in the said premises which were therein described, “ as the same are now occupied by me, and that I have hired and taken the said premises from said Curtis B. Pierce as executor and trustee as aforesaid, for the term of one month from May 1, 1911, as a monthly tenant only, at the monthly rental of $2.50.” He continued to occupy said premises from that time until the 1st day of January, 1914, during which time he paid the monthly rent. During said period the landlord permitted divers parties to place advertising signs upon the fences surrounding the property, from which he received the sum of $706.66. Plaintiff brings this action against the defendant landlord to compel him to pay over the said moneys.

It is not claimed that there was any protest on the part of the plaintiff against the placing of these advertising signs upon the fences of said property or that there was any agreement on the part of the landlord to pay over to the plaintiff any part of the moneys received from said advertising. In the absence of such an agreement, I am wholly at a loss to understand upon what basis this action can be maintained. It is probably true that as long as the plaintiff had the lease of said premises he had the right in the absence of restrictive covenants to grant advertising privileges and to collect the money therefor. The tenant further had the right to object to the landlord’s using the premises for such purposes. If these contracts were made without the consent of the tenant he might have repudiated them and made like contracts himself. But he took no such step. By his silence he acquiesced for nearly three years in this use of the property by the landlord without any agreement with the landlord for any share of the profits. Having thus consented to the landlord’s use of the fences for that purpose, I am unable to find any implied covenant on the part of the landlord to pay to the plaintiff the moneys received therefor.

[371]*371The judgment of the City Court dismissing the complaint and the judgment of affirmance were, therefore, right, and the determination appealed from must be affirmed, with costs.

Clarke, P. J., Laughlin, Scott and Dowling, JJ., concurred.

Determination affirmed, with costs.

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Smith, J.:

Prior to April 28, 1911,. the plaintiff occupied as a tenant certain premises belonging to the estate represented by the defendant. Upon that day plaintiff executed and delivered to his landlord a paper reciting that in consideration of $100 and other good and valuable consideration he surrendered any lease or tenancy that he-, had in the said premises which were therein described, “ as the same are now occupied by me, and that I have hired and taken the said premises from said Curtis B. Pierce as executor and trustee as aforesaid, for the term of one month from May 1, 1911, as a monthly tenant only, at the monthly rental of $2.50.” He continued to occupy said premises from that time until the 1st day of January, 1914, during which time he paid the monthly rent. During said period the landlord permitted divers parties to place advertising signs upon the fences surrounding the property, from which he received the sum of $706.66. Plaintiff brings this action against the defendant landlord to compel him to pay over the said moneys.

It is not claimed that there was any protest on the part of the plaintiff against the placing of these advertising signs upon the fences of said property or that there was any agreement on the part of the landlord to pay over to the plaintiff any part of the moneys received from said advertising. In the absence of such an agreement, I am wholly at a loss to understand upon what basis this action can be maintained. It is probably true that as long as the plaintiff had the lease of said premises he had the right in the absence of restrictive covenants to grant advertising privileges and to collect the money therefor. The tenant further had the right to object to the landlord’s using the premises for such purposes. If these contracts were made without the consent of the tenant he might have repudiated them and made like contracts himself. But he took no such step. By his silence he acquiesced for nearly three years in this use of the property by the landlord without any agreement with the landlord for any share of the profits. Having thus consented to the landlord’s use of the fences for that purpose, I am unable to find any implied covenant on the part of the landlord to pay to the plaintiff the moneys received therefor.

[371]*371The judgment of the City Court dismissing the complaint and the judgment of affirmance were, therefore, right, and the determination appealed from must be affirmed, with costs.

Clarke, P. J., Laughlin, Scott and Dowling, JJ., concurred.

Determination affirmed, with costs.

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Bluebook (online)

176 A.D. 369, 162 N.Y.S. 967, 1917 N.Y. App. Div. LEXIS 4721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blumenthal-v-kelsey-nyappdiv-1917.

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