Bernier v. Benson, Gen. No. 47664

• Decision Date: 22 April 1959
• Docket Number: Gen. No. 47664
• Citation: 159 N.E.2d 39,21 Ill.App.2d 532
• Parties: Jean Richard BERNIER and David Gomberg, Appellants, v. Benjamin A. BENSON and Vivian E. Benson, Appellees.
• Court: United States Appellate Court of Illinois

Page 39

159 N.E.2d 39

21 Ill.App.2d 532

Jean Richard BERNIER and David Gomberg, Appellants, v. Benjamin A. BENSON and Vivian E. Benson, Appellees.

Gen. No. 47664.

Appellate Court of Illinois, First District, Third Division.

April 22, 1959.

Harold Orlinsky, Fred Herzog, Gomberg, Levin & Gomberg, Chicago, for appellants.

Abraham Rabichow, Maurice A. Frank, Chicago, for appellees.

FRIEND, Presiding Justice.

On May 1, 1956 three licensed physicians, Jean Richard Bernier, David Gomberg, and Joseph E. Caliendo, entered into a lease with Benjamin and Vivian Benson for premises located at 4530 North Beacon Street, in Chicago, to be used for the purpose of conducting a nursing and convalescent home under the name of Beacon Crest Nursing Home. The lease was to terminate April 30, 1958, unless renewed for an additional term of five years, in accordance with an option granted by lessors in an attached rider which read as follows: 'It is further agreed by and between the parties hereto that the Lessee shall have the right and privilege of renewing the aforesaid Lease for an additional five (5) years upon the paying of Seven Hundred Fifty ($750) Dollars a month thereafter and an additional sum of Two Thousand Two Hundred Fifty ($2,250) Dollars security for the last three (3) months of the new lease. Notice of renewal must be in writing and given to Lessor ninety (90) days before April 30, 1958.' On May 14, 1956, two weeks after the lease was executed, the three physicians formed a partnership in writing which provided that the partnership should become effective as of May 1, 1956 rather than on the date of execution of the agreement. On January 30, 1958 lessees were given an extension of time to February 28, 1958 in which to exercise the renewal option, and on February 24, 1958 they purported to exercise the option by sending the following notice to lessors: 'Please be advised that I, Jean Richard Bernier, M. D., on behalf of the Beacon Crest Nursing Home, 4530 North Beacon Street, Chicago, Illinois, do hereby give you notice of renewal of a certain lease dated May 1, 1956, and a rider attached thereto dated May 1, 1956, in accordance with the provisions in paragraph six of that certain rider dated May 1, 1956. It should be understood and agreed as part of the conditions of this renewed lease that in the event a license to operate a nursing home is not renewed through no fault of the lessee, but, as the result of certain complications arising through the actions of the lessor, this lease can be declared null and void at the option of the lessee and said lessee will not be liable to lessor in any amount whatsoever.' Plaintiffs' counsel say in their brief that the second part of the notice was prompted by newspaper articles which accused the lessor, Benjamin Benson, who was at that time a city building inspector, of violations of the building code with respect to the leased premises, and charged him with unlawful activities in covering up these violations. Lessors refused to recognize the acceptance of the option by lessees and commenced eviction proceedings against them in the Municipal Court of Chicago. Lessees thereupon filed a complaint in equity in the Circuit Court to restrain the prosecution of that suit.

On May 14, 1958 a temporary injunction was granted by one of the chancellors, restraining lessors from proceeding in any manner with the eviction action, and enjoining them from interfering with the operation of the nursing home. Subsequently, the matter came on for hearing before another chancellor on a motion to dissolve the injunction. He tried the case on the question whether the notice given by lessees for the purpose of exercising the option was legally effective and, pursuant to hearing, found that the option was not properly exercised, and thereupon dissolved the injunction, but he did not dismiss the complaint which is still pending in the Circuit Court, as is the eviction proceeding in the Municipal Court. Dr. Caliendo has withdrawn from the nursing home enterprise, and the remaining lessees, Drs. Bernier and Gomberg, appeal from the dissolution order.

Although the question is not raised on appeal, we believe that the motion for a temporary injunction should not have been entertained inasmuch as lessees had an adequate remedy at law in the Municipal Court where the forcible-entry proceeding was pending; the validity of the proposed notice to exercise the option could and should have been determined in the Municipal Court.

However, we are called upon to decide only the propriety of the court...