Polakoff v. Halphen

• Decision Date: 28 February 1914
• Citation: 89 A. 996,83 N.J.Eq. 126
• Parties: POLAKOFF v. HALPHEN.
• Court: New Jersey Court of Chancery

89 A. 996

83 N.J.Eq. 126

POLAKOFF

v. HALPHEN.

Court of Chancery of New Jersey.

Feb. 28, 1914.

Suit by Jacob Polakoff against Andre Halphen for an injunction. On hearing at return of order to show cause. Preliminary injunction denied.

U. G. Styron and Jos. B. Perskie, both of Atlantic City, for complainant.

Thompson & Smathers, of Atlantic City, for defendant.

LEAMING, V. C. Complainant is the lessee of certain real estate in Atlantic City; his term will expire December 27, 1914. Defendant is the owner of the reversion through a grant from complainant's lessor; complainant pays his rent to defendant. The premises which are admittedly covered by the lease held by complainant include a store building facing on a street and living rooms above the store, and also a space in the rear of the store which has been vacant until recently. It is that part of the leased premises which is in the rear of the store which occasions the present controversy.

It is conceded that defendant sought permission from complainant to erect a building in the nature of an annex to the store on that part of the leased premises in the rear of the store, and that complainant acceded to defendant's request.

Defendant has erected the building, and it is now completed, except as to its interior. Complainant claims that the building which has been erected by defendant is essentially different from the building which he authorized, and has accordingly revoked his consent An injunction is now sought by complainant to compel defendant to stop further work on the building, and to prevent its occupancy or use by defendant.

The answer and answering affidavits filed by defendant set forth a copy of a written consent for the erection of the building signed by complainant, and assert that the building in all essential respects conforms to plans agreed upon by complainant and defendant.

The consent for the erection of the building, which was signed by complainant, is as follows:

"Atlantic City, N. J., Dec. 1st, 1913.

"I hereby agree to allow Mr. A. F. Halphen to build an addition in the rear of my store. J. Polakoff."

It will thus be perceived that complainant bases his right to relief upon his revocation of the license; whereas, defendant contests complainant's right of revocation.

It may be conceded that an agreement or consent, not under seal and without consideration, of the nature of that above quoted, whereby the owner of real estate, or a tenant as owner of the term, permits its use by another, is not operative as a grant, but is in a court of law regarded as a mere license revocable by the licensor at his pleasure; it may afford a justification for acts done by the licensee pursuant to the license prior to revocation, but not thereafter. Richman v. Baldwin, 21 N. J. Law (1 Zab.) 395; Hetfield v. Central R. Co., 29 N. J. Law (5 Dutch.) 571; Banghart v. Flummerfelt, 43 N. J. Law (14 Vroom) 28. It will be observed, however, that in each of the cases above cited the suggestion is made that a court of equity may in proper cases relieve against a revocation of a license when it appears that the revocation would be in effect operative as a fraud on the licensee. The following cases in this state define the nature and extent of equitable jurisdiction to relieve against revocations of licenses of the class suggested. Raritan Water Co. v. Veghts, 21 N.J.Eq. (6 C. E. Green) 463; East Jersey Iron Co. v. Wright, 32 N.J.Eq. (5 Stew.) 248; Morton v. Morton, 47 N.J.Eq. (2 Dick.) 158, 20 Atl. 286; Lawrence v. Springer, 49 N.J.Eq. (4 Dick.) 289, 24 Atl. 933, 31 Am. St Rep. 702; Barbour v. Barbour, 51 N.J.Eq. (6 Dick.) 267, 29 Atl. 148; Berry v. Potter, 52 N.J.Eq. (7 Dick.) 667, 29 Atl. 323; Van Horn v. Clark, 56 N.J.Eq. (11 Dick.) 476, 40 Atl. 203; Hartman v. Powell, 68 N.J.Eq. (2 Rob.) 293, 59 Atl 628. An examination of these cases will disclose the accepted rule in this state to be that, when the agreement or license, whether founded in parol or in writing, is clearly established, and...