Raner v. Goldberg
| Decision Date | 23 February 1927 |
| Citation | 244 N.Y. 438,155 N.E. 733 |
| Parties | RANER v. GOLDBERG. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Rajner J. Raner against Isaac Goldberg. A judgment of the Trial Term (125 Misc. Rep. 329, 209 N. Y. S. 750) entered upon a verdict directed by the court, a jury being waived, dismissing the complaint upon the merits, was reversed by the Appellate Division (215 App. Div. 355, 213 N. Y. S. 345) and judgment directed for plaintiff, and both parties appeal.
Judgment of the Appellate Division reversed, and that of the Trial Term affirmed.
Appeal from Supreme Court, Appellate Division, First department.
Jacob L. Holtzmann and Jacob Krisel, both of New York City, for appellant.
John Goodrum Miller, of Brooklyn, for respondent.
In January, 1922, the parties entered into an agreement whereby the defendant leased to the plaintiff certain premises ‘to be used and occupied as an office and for dancing purposes and for the sale of all kinds of soft drinks and for sale of cigars, cigarettes, and ice cream.’ The parties undoubtedly intended that the premises were to be used as a public dance hall, and that all other use was merely incidental thereto. When the parties made the lease, they understood that the premises could not be used lawfully as a dance hall unless a license for such use was obtained. The landlord was required under the terms of the lease to make certain alterations which were intended to make the premises suitable for such use. When the alterations were complete, the plaintiff applied for a license to conduct a dance hall on the premises. The license was refused. The reason for such refusal does not clearly appear, but perhaps it may be inferred that the license was refused because the premises were not far from a church, and members of the church and others opposed grant of a license for any building in that neighborhood. Because refusal to grant a license precluded the plaintiff from using the premises lawfully for the purpose for which the lease was made, the plaintiff brought this action to recover the sum of $3,000 paid as a deposit under the terms of the lease and $500 paid as rent for the first month. He claimed also reimbursement for certain expenses incurred in preparation for occupancy under the lease, but this claim was not pressed. At the close of the case both sides moved for the direction of a verdict. The trial justice granted the motion of the defendant. The Appellate Division has reversed the judgment as matter of law and has directed judgment in favor of the plaintiff for the return of the deposit and the rent for the first month.
[1] ‘There is obviously no impossiblity or illegality in paying the rent, and the landlord by making the lease has conveyed to the tenant the estate for which rent was promised.’ Williston on Contracts, § 1955. The parties in making the contract of lease did not intend that the premises should be used for an illegal purpose. They intended that the demised premises should be used as a dance hall only when the lessee had obtained a license. A contract so made is not unlawful. Shedlinsky v. Budweiser Brewing Co., 163 N. Y. 437, 57 N. E. 620. Use of the premises in the manner contemplated by the lease is unlawful only because the contingency that the license might not be granted has arisen.
[2] We assume for the purpose of this appeal that where parties enter into a lease exclusively for a use which is not illegal when the contract is made but such use becomes illegal by change of law, the lease is thereby terminated. We do not pass upon or decide such question. Courts of other jurisdictions have differed in regard to it. In such case it may perhaps be said that the value of the lease is destroyed by circumstance not within the contemplation of the parties when the lease was made, or even that a lease of premises to be used in a business subject to public regulation is impliedly subject to a condition that change of regulation shall not make the contemplated use illegal. Here even if we construe the provisions of the lease to mean that the lessee may not use the premises except for a dance hall, the value of the lease is destroyed not by a change of law or other circumstance arising after the making of the lease, and outside of the contemplation of the parties, but by failure of the lessee to secure a license which the parties...
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