Evans Products Co. v. Decker
| Citation | 52 A.D.2d 991,383 N.Y.S.2d 457 |
| Parties | EVANS PRODUCTS COMPANY, Respondent, v. John DECKER et al., Appellants. |
| Decision Date | 20 May 1976 |
| Court | New York Supreme Court Appellate Division |
DeGraff, Foy, Conway & Holt-Harris, Albany (John T. DeGraff, Albany, of counsel), for appellants.
Herron, Lawler, Fischer & Hughes, Malone (Henry A. Fischer, Malone, of counsel), for respondent.
Before KOREMAN, P.J., and SWEENEY, KANE, MAHONEY and LARKIN, JJ.
Appeal from a judgment of the Supreme Court in favor of plaintiff, entered February 4, 1975 in Franklin County, upon a decision of the court at a Trial Term without a jury.
The proof adduced at the trial establishes the following: On October 4, 1972 the parties entered into a lease agreement which consisted of four separate documents, namely, a short from lease, a lease agreement, a purchase and sale agreement and a contract to purchase certain business assets. Under the agreement the defendants leased to the plaintiff the premises at which defendants conducted a building supply business; plaintiff was given the option to purchase the premises at any time after the end of the third year for the sum of $210,000, in accordance with the purchase and sale agreement. Also included in the lease was a personal covenant by the defendants whereby they agreed not to compete with the plaintiff anywhere within the State of New York for a period of 15 years, in consideration for the purchase of certain assets by the plaintiff and for the performance by the plaintiff of its obligations under the agreement. Under the purchase and sale agreement the defendants agreed that, if plaintiff exercised its option to purchase, the use of any land then owned by the defendants within the counties of Essex and Franklin would be restricted for a period of 15 years.
On the following day, October 5, 1972, the parties executed a Lease Modification Agreement whereby the defendants were given the option of requiring the plaintiff to purchase the premises for $210,000; all other terms and conditions of the lease, however, remained unchanged. Thereafter, and prior to the time that the plaintiff was to enter into possession of the premises under the terms of the lease, the defendants exercised their option to sell, and compelled the plaintiff to purchase the premises. Upon the conveyance of title in January, 1973, and in compliance with the purchase and sale agreement, the defendants executed a covenant agreeing that:
no other commercial lands within the counties of Essex and Franklin, State of New York, in which the (defendants) now have an interest, direct or indirect, may be used, for a period of fifteen (15) years after the date of January 8, 1973, for the sale at retail, wholesale or otherwise, with inside and outside storage, of lumber, wood building material, hardware (exclusive of plumbing and heating) and paint, for any of the foregoing.
Subsequent to the transfer of the premises to the plaintiff, the defendants opened a competing store at a new location in Saranac Lake in violation of the personal covenant not to compete contained in the lease agreement, and as a result of which this action was instituted.
On this appeal defendants contend that the personal covenant of October 4, 1972 is not enforceable because the lease in which it is contained never became...
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