Noah's Ark, Division of Eckmar Corp. v. Geib
| Decision Date | 20 February 1969 |
| Citation | 31 A.D.2d 886,298 N.Y.S.2d 296 |
| Parties | NOAH'S ARK, DIVISION OF ECKMAR CORP., Appellant, v. Fred W. GEIB, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Wiser, Shaw, Freeman, VanGraafeiland, Harter & Secrest, John F. Mahon, Rochester, for appellant.
Harris, Beach, Wilcox, Dale & Linowitz, Kreag Donovan, Rochester, for respondent.
Before DEL VECCHIO, J.P., and MARSH, WITMER, GABRIELLI and MOULE, JJ.
The record shows that respondent re-entered his premises peaceably, but is forcibly excluding appellant tenant from re-occupying them. Thus, there is no merit to appellant's claim that it was forcibly evicted. The record also shows that the fire damage to the premises was so extensive (90 per cent of the value thereof) that the landlord was justified in deciding to rebuild and declaring the lease terminated (Corbett v. Spring Garden Ins. Co., 155 N.Y. 389, 390, 50 N.E. 282, 41 L.R.A. 318; same case after retrial, opinion 40 App.Div. 628, 58 N.Y.S. 148, affd. without opinion, 167 N.Y. 596, 60 N.E. 1109).
Judgments unanimously affirmed with costs.
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