Round Lake Ass'n v. Kellogg

• Decision Date: 27 February 1894
• Citation: 141 N.Y. 348,36 N.E. 326
• Parties: ROUND LAKE ASS'N v. KELLOGG.
• Court: New York Court of Appeals Court of Appeals

141 N.Y. 348

36 N.E. 326

ROUND LAKE ASS'N

v.KELLOGG.

Court of Appeals of New York.

Feb. 27, 1894.

Appeal from supreme court, general term, third department.

Action by the Round Lake Association against Bradford D. Kellogg for injunction. From a judgment of the general term (20 N. Y. Supp. 261) affirming a judgment of the special term for plaintiff, defendant appeals. Affirmed.

C. H. Sturges, for appellant.

E. Countryman, for respondent.

BARTLETT, J.

This is an appeal from a judgment affirming the judgment of the special term enjoining the defendant from selling or offering for sale any goods, wares, or merchandise upon the lots leased by him of the plaintiff, or upon any of its grounds, without first obtaining a license from the plaintiff. The plaintiff is a corporation organized as the Round Lake Camp-Meeting Association of the Methodist Episcopal Church of the Troy Conference, under chapter 617, Laws 1868. The name of the corporation was changed, by order of the Saratoga county court, July 8, 1887, to the Round Lake Association. In September, 1868, the trustees adopted a constitution and by-laws, which were, on the 31st day of March, 1869, adopted and approved at a meeting of the stockholders. This constitution declared that the objects of the association were to appoint and hold such camp meetings within the bounds of the Troy conference as they may choose. It further provided that the trustees should elect out of their number a president, vice president, treasurer, secretary, and a prudential committee of three, who, together, should constitute an executive committee, and have full power to act for the board of trustees during the interim of their regular meetings, and hold office until their successors were elected. It also provided in a separate article that the executive committee should have general oversight of all the interests of the camp meeting, and that they should arrange ‘the prices for tents, ground rents, fees for entrance for teams, railroad fares, privileges for boarding tents, and other privileges.’ The trial court finds the constitution was legally revised in 1874, but not changed in the particulars material to this action. On the 26th of March, 1887, certain rules and regulations were adopted by plaintiff's executive committee, and posted in public places, and distributed among the cottagers, which contained, among others, the following: ‘(1) Merchandise, general or special, shall not be sold or offered for sale on any lot, or on any place on the association grounds, either on the east or west side of the railroads, without a purchased permit, given in writing by the executive committee. * * * (4) No peddler, organ grinder, tramp, or other person with goods or wares of any kind to sell shall be allowed to ply his vocation on the grounds.’ On May 3, 1890, the executive committee also adopted the following additional rules and regulations: ‘No person shall sell or offer to sell goods, wares, or merchandise upon any of the lots leased by this association, or upon the grounds of the association, without having first obtained a license or permission therefor from the officers of this association. No person shall carry on any trade, business, or vocation on such lots, or upon the grounds of the association, without first having obtained a license or permission from the officers of this association, or without having first paid the rent or fee fixed by the officers therefor.’ May 5, 1890, defendant was notified, in writing, by plaintiff's superintendent, that the selling of merchandise on his lot was in violation of the rules and regulations, and that he was required to desist and refrain from doing so without the written permission of the executive committee. The defendant then informed the superintendent that he proposed to fight it out, and know what he could do, and would continue to sell as long as he could. On the 24th of May, 1890, copies of the rules adopted on the 3d of May, 1890, with a notice of their adoption, and that defendant was required to obey the same, were served personally on the defendant. This action was commenced May 26, 1890.

The plaintiff, in the year 1884, leased to Caroline J. Bancroft lot No. 1,426, and to Rice Hall lot No. 1,427, and in September, 1886, both of said leases were assigned to the defendant. These leases contained the following provisions, viz.: ‘This lease is granted by said party of the first part, and accepted by said party of the second part, subject to the following express conditions, reservations, and restrictions: * * * (5) This lease is accepted by the said party of the second part, subject to all the rules and regulations which may from time to time be adopted and promulgated by the party of the first part for the government of said grounds, and which are hereby made a part of this lease, as fully to all intents and purposes as if they were incorporated therein. (6) A refusal on the part of the party of the second part, his heirs, legal representatives, or assigns, to fulfill all or either of the foregoing covenants, conditions, and agreements shall operate as a forfeiture of this lease, and said party of the first part may, at its option, after such failure or refusal, re-enter upon said premises without suit or legal process, and repossess, hold, and enjoy the same as of its first and former estate. To all of which terms, covenants, and conditions the parties hereto mutually consent and agree.’ On the 26th day of March, 1887, the executive committee gave permission to the defendant to conduct a store on the lots covered by these leases for the sale of groceries, dry goods, etc., on the payment of $50 for the year 1887, and for the next four years at the rate of not exceeding $100 per year. Before erecting his store the defendant was informed that he would have to pay for the privilege of doing business. The...