Downtown Harvard Lunch Club v. Racso, Inc.

• Decision Date: 24 October 1951
• Citation: 201 Misc. 1087
• Parties: Downtown Harvard Lunch Club, Plaintiff,<BR>v.<BR>Racso, Inc., Defendant.
• Court: New York Supreme Court

201 Misc. 1087

Downtown Harvard Lunch Club, Plaintiff,

v.Racso, Inc., Defendant.

October 24, 1951.

William S. Beinecke and Edward J. Madden for plaintiff.

Albert Felix and Allen S. Stim for defendant.

WALTER, J.

A tenant here seeks damages for an alleged breach of his lease by the landlord. The first question is whether or not there was a breach. If so, a second question will be whether a provision in the lease operates to limit plaintiff's recovery to $2,000.

By written lease made March 15, 1948, defendant leased to plaintiff, for a term of three years from April 1, 1948, to March 31, 1951, at an annual rent of $8,000, payable monthly in advance, certain space on the second floor of the building at the southwest corner of William and Liberty Streets to be used and occupied for a lunch club by plaintiff's members and their guests from 11:30 A.M. to 3:00 P.M. Mondays to Fridays inclusive and between 3:00 P.M. and 9:00 P.M. for not more than six special events during each calendar year.

Defendant agreed (a) to sell to plaintiff's members and their guests, at such premises at the times stated, food and beverages of such kind and style as defendant shall deem suitable and proper for a noonday cafeteria lunch and at such prices as defendant may determine; (b) to prepare and serve such food and beverages in cafeteria or buffet style in a suitable and convenient manner for plaintiff's members and guests to partake thereof; (c) to provide busboys, countermen, dishwashers and such employees as may be required for the removal of refuse and rubbish to keep the premises clean. Defendant was under no obligation to provide waiters for tables, plaintiff being required to take the food and beverages "cafeteria or buffet style" and to furnish its own chairs, tables, glassware, linen (if any), china, and silverware, and such waiters or waitresses (if any) as it may desire.

The lease provides (Par. NINETEENTH) that defendant shall not be liable for any failure or delay in furnishing food or beverages for causes beyond its control, or for any failure of defendant's landlord to comply with its obligations, but upon any continued failure by defendant to furnish food and beverages, as herein provided, for more than thirty consecutive days plaintiff shall have the option to terminate the lease by giving written notice to defendant after such thirty-day period and during a continuance of such failure or delay, and in such event the lease shall terminate, and if plaintiff shall have complied with all its obligations under the lease, defendant will pay to plaintiff upon plaintiff's vacating the demised premises the sum of $2,000.

Plaintiff spent nearly $2,600 in changing and decorating the demised premises to make them suitable for its occupancy, and spent about $2,400 for furnishings for the premises; and the food, beverages and service supplied by defendant were at least reasonably satisfactory until the fall of 1949, until which time defendant supplied two busboys, two countermen, and a cashier.

In the fall of 1949 defendant reduced to one busboy and one counterman, and upon occasions it supplied no help other than a cashier. This resulted in service extremely unsatisfactory to plaintiff and its members and their guests. Soiled dishes were not removed from the tables with reasonable promptness, there was delay in securing food, and the walls, floors, tables and chairs were not kept in the desired state of cleanliness. Plaintiff protested on several occasions, but defendant did nothing to remedy the conditions complained of and its president bluntly stated that he would do nothing to remedy them; and on February 9, 1950, plaintiff wrote defendant asserting that defendant had committed a substantial and continuing breach of the lease for a period in excess of thirty days, and advising defendant that, because of such breach, plaintiff elected to terminate the lease as of 11:59 P.M. of February 28, 1950.

Plaintiff then vacated the premises on February 28, 1950.

It sold for $510 dining room equipment for which it had paid $2,000, and has incurred an expense of $400 for storing other furniture and furnishings which it had placed in the premises. Plaintiff was also unsuccessful in its efforts to find other quarters, and because of its inability to supply its members with luncheon facilities and to avoid wholesale resignations, it remitted membership dues for the year beginning April 1, 1950, which remission has resulted in its not receiving $6,960 which it, in all probability, would have received if defendant had performed the lease.

Plaintiff contends that the $6,960 of remitted dues, $260 of the storage charges, and the $1,490 difference in value between the furniture new and the furniture sold, constitute the damage it has sustained in consequence of defendant's breach, and it asks judgment for those sums plus the $2,000 provided for in paragraph NINETEENTH of the lease.

I find that defendant's omissions constituted such a failure to furnish food and beverages as provided for in the lease as justified plaintiff in terminating the lease and vacating the premises. I find, also, that some loss of dues, some loss on a resale of furniture, and some expense for storage charges, are items which must be deemed to have been within the contemplation of the parties as natural and probable consequences of such breach of the lease by defendant as it actually committed; but I do not deem it necessary to decide whether the figures I have given constitute the actual amounts of those items which plaintiff would be entitled to recover if the lease contained no provision for a payment of...