Xannos v. Spring Park Club, Inc.

235 A.D. 881

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1932
• Status: Published

Opinion

Judgment reversed on the law and facts, and judgment rendered in favor of the plaintiff and against the defendants for an injunction, and for costs. The sale of ice cream, soft drinks, candy, light lunches, cigars, cigarettes and tobacco to be enjoined during the term of plaintiff’s lease in the portions of the “ Butler Block ” leased after AprE 9, 1928. Such articles may be sold by tenants who were so engaged prior to the date of plaintiff’s lease. The court reverses findings of fact in the decision numbered “ sixteenth,” 11 seventeenth,” “ eighteenth,” “ nineteenth,” “ twentieth,” “ twenty-first ” and “ twenty-second,” and makes the following new findings: The plaintiff has sold at all times since making the lease on AprE 9, 1928, and continues to seE ice cream, soft drinks, candy, Eght lunches, cigars, cigarettes and tobacco; the restriction that the lessor “ refrain from renting any other store in said Butler Block for a similar business except what is now being occupied for said purpose ” applies to the sale of merchandise of the character mentioned; the defendant Ehrmann had knowledge of the restriction at and before the time he entered into his lease and the business conducted by him was and is in violation of the restriction. All concur.