Hempstead Theatre Corp. v. Metropolitan Playhouses, Inc.

124 N.E.2d 332, 308 N.Y. 712, 1954 N.Y. LEXIS 1810

Opinions

Per Curiam.

We agree with the courts below that the cause of action under attack should not be dismissed for legal insufficiency. It is impossible to say what facts may be developed under the allegations of this cause of action at the trial. It may not be said, as a matter of law, that the term ‘‘ gross receipts ’ ’, as used in the percentage lease before us, excludes the entire amount of $2,000,000 recovered by the tenant in settlement of the Federal antitrust suit. In short, questions of fact are presented which must be determined upon a trial.

The order should be affirmed, with costs, the first question certified answered in the affirmative, and the second question certified answered in the negative.