Nemmer Furniture Co. v. Select Furniture Co.

• Decision Date: 02 December 1960
• Citation: 208 N.Y.S.2d 51,25 Misc.2d 895
• Parties: NEMMER FURNITURE CO., Inc., Plaintiff, v. SELECT FURNITURE CO., Inc., Defendant.
• Court: New York Supreme Court

Page 51

208 N.Y.S.2d 51

25 Misc.2d 895

NEMMER FURNITURE CO., Inc., Plaintiff, v. SELECT FURNITURE CO., Inc., Defendant.

Supreme Court, Erie County.

Dec. 2, 1960.

Offermann, Fallon & Mahoney, Buffalo (Francis J. Offerman, Jr., Buffalo, of counsel), for plaintiff.

Rachlin & Rachlin, Buffalo (Lauren D. Rachlin, Buffalo, of counsel), for the defendant. MICHAEL CATALANO, Justice.

On August 4, 1960, an order to show cause was obtained by plaintiff for a temporary injunction 'enjoining * * * defendant * * * from holding * * * a public sale of furniture * * * on the third and fourth floors of 600 Main Street, Buffalo, New York which would cause the general public to walk through and trespass upon the premises known as 606 Main Street in the City of Buffalo, New York, which are leased by the plaintiff'.

On August 24, 1960, such a temporary injunction order was granted by the court.

On July 9, 1957, the parties entered into an agreement, reciting that defendant, as party of the first part, was lessee of 606 Main Street and plaintiff, as party of the second part, was desirous of leasing said premises, and agreeing, in part:

'Fifth: The party of the second part agrees that the party of the first part shall have full means of access and egress during the party of the second part's business hours to and from the floors specified in paragraph 'Fourth' prior to their surrender, and to the space on the third and fourth floors leased by the party of the first part from Chippewa-Pearl, Inc. during the continuation of said lease; provided, however, that the party of the first part may not take furniture through the main floor of the store after September 1, 1957 but may move furniture by means of the freight elevator and sidewalk lift and/or by whatever means are used by the party of the second part for moving its own furniture. The party of the first part shall not have a key to the premises.'

On July 9, 1957, defendant was and still is in possession of the third and fourth floors of premises known as 600 Main Street, adjacent to the premises known as 606 Main Street, Buffalo, New York, under a written lease with Chippewa-Pearl, Inc., the owner. On said date, defendant was ceasing retail furniture operations, but no representation or agreement was ever made as to the resumption of retail operations by defendant to plaintiff; and prior thereto, defendant had been the tenant of the premises located at 606 Main Street, as well as said portion of the third and fourth floors of the adjacent premises at 594-604 Main Street; the only means of access and egress thereto was through 606 Main Street.

At the time of the execution of said agreement, plaintiff was well aware of the fact that the only means of access to said portion of 594-604 Main Street was through 606 Main Street. At said time, defendant was and still is the tenant of said portion of 594-604 Main Street under a lease that expires May 1, 1962 at a monthly rental of $72.50 which expiration date plaintiff knew; and this lease permits defendant to use the premises only for a lawful purpose. Defendant had used said portion of 594-604 Main Street at various times for selling as a sales and show room and as an office and storeroom; and defendant never made any agreement or representation to plaintiff as to the use that would be made by it of said premises at 594-604 Main Street. Defendant removed its signs from the front of 606 Main Street and delivered its keys to plaintiff.

Plaintiff's complaint prays for judgment enjoining permanently defendant 'from attempting to and from holding a sale that would cause the general public to walk through the premises of the plaintiff.'

Defendant's counterclaim demands a declaratory judgment directing plaintiff not to interfere with 'the defendant, its officers, directors, servants, employees, or any person having business with the said defendant from gaining access or egress to that portion of the premises at 594-604 Main Street leased by said defendant.'

The fundamental rule in the interpretation of all contracts is to ascertain the substantial, expressed intent of the parties contained in the entire agreement. Manson v. Curtis, 223 N.Y. 313, 320, 119 N.E. 559, 561. If the words are clear, other means of interpretation are not necessary. McCluskey v. Cromwell, 11 N.Y. 593, 601. In considering the entire contract, the court may examine the relation of the parties, the circumstances under which it was executed so as to give a sensible meaning to the words used (Atwater & Co. v. Panama R. R. Co., 246 N.Y. 519, 524, 159 N.E. 418, 419); punctuation and grammatical construction may be weighed to clarify, but not to defeat, the parties' intent. Wirth & Hamid Fair Booking, Inc., v. Wirth, 265 N.Y. 214, 219, 192 N.E. 297, 299. Technical words are taken in their technical sense, unless context or usage clearly indicate otherwise. Nau v. Vulcan Rail & Construction Co., 286 N.Y. 188, 198, 36 N.E.2d 106, 111. Loosely drawn instruments, such as letters between business men, shall be read as the parties would read them to avoid meaninglessness (Outlet Embroidery Co. v. Derwent Mills, 254 N.Y. 179, 183, 172 N.E. 462, 463, 70 A.L.R. 1440); but where the contract evidences care in its preparation, it will be presumed that its words were employed deliberately and intentionally. In re Rivas' Trust, Sup., 100 N.Y.S.2d 357, 365. In no event may the court construct a new contract for the parties. Dwight v. Germania Life Ins. Co., 103 N.Y. 341, 347, 8 N.E. 654, 665 .

A right of way, such as a right of 'egress and ingress' over the property of another, may be general in character and usable for all purposes; or it may be limited, such as a right of way for carriages not carts, for horses not carriages, or only a footway. Dalton v. Levy, 258 N.Y. 161, 166, 179 N.E. 371, 372. Where the terms of the grant are general, it thereby includes all reasonable and lawful uses to which the property may be devoted. Missionary Society of Salesian Congregation v. Evrotes, 256 N.Y. 86, 89, 175 N.E. 523, 524. See also O'Neil Supply Co. v. Petroleum H. & P. Co., 280 N.Y. 50, 55, 19 N.E.2d 676, 678.

The mere fact that a use is novel is not sufficient to prevent its enforcement whether or not it be called an easement, license, or contractual right. (See Restatement of the Law of Property, Vol. V, Servitudes, Part I, Chap. 37, § 450, pp. 2909-2910; Chap. 43, § 512, p. 3115).

An easement is a right to use the land of another, enjoyed by a dominant estate over a servient estate, appurtenant thereto, but not personal to the owner, and classified as an incorporeal hereditament. Antonopulos v. Postal Telegraph Cable Co., 261 App.Div. 564, 568, 26 N.Y.S.2d 403, 407, affirmed 287 N.Y. 712, 39 N.E.2d 931. Easements are acquired by grant or prescription . Smith v. N. Y. Central Railroad Co., 235 App.Div. 262, 266, 257 N .Y.S. 313, 318. Strictly speaking, there is no easement in gross, limited to the person,...