Bovin v. Galitzka

• Decision Date: 13 February 1929
• Citation: 250 N.Y. 228,165 N.E. 273
• Parties: BOVIN v. GALITZKA et al.
• Court: New York Court of Appeals Court of Appeals

250 N.Y. 228

165 N.E. 273

BOVIN

v.GALITZKA et al.

Court of Appeals of New York.

Feb. 13, 1929.

Action by Rose Bovin against Samuel Galitzka, Philip Schorr, and another. Judgment in second named defendant's favor and order denying plaintiff's motion to strike out second defense contained in such defendant's answer were reversed by the Appellate Division (223 App. Div. 737, 227 N. Y. S. 775), and second defendant named appeals.

Order of Appellate Division reversed, and judgment of Special Term affirmed, and certified questions answered.

See, also, 131 Misc. Rep. 479, 226 N. Y. S. 361, 364.

Appeal, by permission, from a judgment and order of the Appellate Division of the Supreme Court in the Second judicial department, entered March 9, 1928, which reversed a judgment in favor of the defendant Philip Schorr on the pleadings and admissions of the plaintiff. Also from an order of said Appellate Division entered February 23, 1928, which reversed an order denying plaintiff's motion to strike out the second defense contained in the answer of the defendant Philip Schorr and granted said motion. The following questions were certified:

‘1. Does the complaint state facts sufficient to constitute a cause of action?

‘2. Is the second separate defense, alleged in the answer of the defendant Philip Schorr, sufficient in law?’

The theory of the second defense was that the words ‘to be used and occupied real estate office,’ contained in a lease of a store and cellar, did not operate as a restrictive covenant.Appeal from Supreme Court, Appellate Division, Second Department.

J. Irwin Shapiro, of New York City, for appellant.

Jesse S. Raphael, of New York City, for respondent.

HUBBS, J. (after stating the facts as above).

This action was commenced by the owner and lessor of real property to procure an injunction restraining the defendants, her lessee and sublessees, from using ‘the corner store and part of the cellar in the premises and building known as and by the street number 3001 Avenue N, in the Borough of Brooklyn’ for any business other than a real estate office.

The lease in question was for a term of five years at an annual rental of $1,200. It described the premises leased as ‘the corner store and part of cellar in building known as No. 3001 Avenue N * * * to be used and occupied real estate office.’ The complaint alleges that the lessee has sublet the said premises to the other defendants, and that they are using said premises for a grocery and dairy store, and demands judgment that the sublease be declared void and that the sublessees ‘be enjoined and restrained from using or occupying said demised premises or any portion thereof for any purpose other than as a real estate office.’

The question for our determination is whether the words ‘to be used and occupied real estate office,’ constitute a restrictive covenant which prevents the lessee or his sublessees from using said ‘corner store and part of cellar’ for any purpose other than a real estate office.

The plaintiff had the absolute right, by appropriate provisions in the lease, to specify that the leased premises could be used for a particular purpose only. Round Lake Association v. Kellogg, 141 N. Y. 348, 36 N. E. 326.

If the words in question have that effect, a court of equity may, by injunction, prevent the tenant and sublessee from using the premises for any other purpose. Round Lake Association v. Kellogg, supra.

In the absence, however, of restrictions contained in a lease, a tenant may occupy and use the premises leased in any lawful way which he desires, not materially different from that in which they are usually employed, to which they are adapted, and for which they were constructed. U. S. v. Bostwick, 94 U. S. 53, 24 L. Ed. 65;Presby v. Benjamin, 169 N. Y. 377, 62 N. E. 430,57 L. R. A. 317.

It is not alleged...