Rubin v. Leosatis

• Decision Date: 26 May 1933
• Docket Number: 2,3.
• Parties: RUBIN v. LEOSATIS ET AL. WOLF ET AL. v. LEOSATIS ET AL.
• Court: Maryland Court of Appeals

166 A. 428

165 Md. 36

RUBIN v. LEOSATIS ET AL.

WOLF ET AL. v. LEOSATIS ET AL.

Nos. 2, 3.

Court of Appeals of Maryland

May 26, 1933

Appeals from Circuit Court of Baltimore City; Eugene O'Dunne Judge.

Bills by John Leosatis and others against Elizabeth Rubin individually, and as administratrix of the estate of Hyman Rubin, deceased, and against Morris H. Wolf and others. Decree for plaintiffs, and defendants appeal.

Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

Frederick H. Hennighausen and Clarence A. Tucker, both of Baltimore (Hennighausen & Stein, Rome & Rome, and Knapp, Tucker & Thomas, all of Baltimore, on the briefs), for appellants.

George Arnold Frick and Marcus A. Tregor, both of Baltimore (George B. Petite, of Baltimore, on the brief), for appellees.

SLOAN Judge.

The plaintiffs (appellees) are the tenants of the defendants Morris H. Wolf and Lena G. Wolf, his wife, and Benjamin Beck and Cecelia J. Beck, his wife, (appellants), of the storeroom now known as Nos. 5124 and 5126, Park Heights avenue, in Baltimore, under a lease to the plaintiffs, made April 8, 1929, for ten years beginning December 1, 1929, at the rental of $200 per month for the first five years, $225 per month for the next three years, and $250 per month the two last years. It was convenanted in the lease that the lessees would not use nor permit the use of the premises "for the purposes other than those of a lunch room and restaurant," and would "not handle on said premises canned goods for sale in original packages." The lessors on their part covenanted that they would not "at any time during the existence of this lease, rent any other property belonging to them in what is now known as the 5100 block of Park Heights Avenue (West Side) for a lunch room and restaurant and * * * that the said lessors will not permit any tenant conducting a delicatessen store in the property belonging to them in said block to convert the same into a restaurant and/or lunch room as such." On June 6, 1930, the defendants, Morris H. Wolf and Benjamin Beck, leased the store, now known as 5112 Park Heights avenue, to Samuel Mazer and Annie Mazer, his wife, for the term of six years and two months beginning August 1, 1930, at $100 per month, and it was stipulated in that lease that the lessees would not use nor permit the use of the premises "for the purposes other than those of a store for the sale of delicatessen, including tobacco, soft drinks and confectionery," and it was therein further covenanted that they "may transfer this lease only for the same business as herein permitted," with the consent in writing of the lessors, and, on the 2d day of September 1930, with such consent, the lessees assigned the lease "without recourse * * * as to the terms and covenants" of the lease to Hyman Rubin and Elizabeth Rubin, his wife. Hyman Rubin died June 16, 1931, and his wife has since conducted the business at 1512 Park Heights avenue.

The plaintiffs, ever since they improved the premises leased by them at a cost of $12,000 and installed fixtures and equipment at a cost of $18,000, in all, according to their testimony, $30,000, have been conducting a restaurant, as commonly understood, and there is no suggestion in the record to the contrary, but the complaint is that Mrs. Rubin has, in addition to the delicatessen business, embarked in the restaurant business, and that the lessors have permitted her to do it in violation of the covenant of the lessors with the plaintiffs, and of her covenant with the same lessors.

One of the landlords' contentions is that they should not have been included in the decree granting the plaintiffs injunctive relief, because the other tenant, Mrs. Rubin, is before the court and an effective remedy can be had against her. In the case of Schmidt v. Hershey & Dean, 154 Md. 302, 307, 140 A. 363, this court held the lessor to be a proper codefendant with the lessee, charged by the plaintiff with encroaching on the use permitted by the latter's lease, and it was said in the opinion that Snavely v Berman, 143 Md. 75, 77, 121 A. 842, was sufficient authority without reference to other cases. Belvedere Hotel Company v. Williams & Zentgraf, 137 Md. 665, 113 A. 335, 14 A. L. R. 622. Recently, in North Avenue Market, Inc., v. Keys, 164 A. 152, this court held that a lessor may, by injunction, compel a tenant to observe the covenants of a lease which restricts the sale to certain classes of goods and merchandise and another tenant (Snavely v. Berman, supra) may require the landlord to protect his covenants against other lessees. Although there was no reference to it in the bill or answers, one of the plaintiffs, Andrews, testified that in February, 1932, he and his partner, John Leosatis, and his (Andrews') brother-in-law, formed a corporation under the name of "Pimlico Restaurant, Inc.," which was the sign on the window, the name under which the business theretofore conducted by them having been "Pimlico Restaurant," and that "around February" they assigned the lease to the corporation, and that after that time they paid the rent by the corporation's checks which were accepted by Beck, who acted for the landlords and who "didn't say a word." The lessors' contention is that the bill should be dismissed because the evidence shows that the plaintiffs have parted with their interest in the lease to them from Wolf and Beck, and that, having no interest in the suit, they are not entitled to relief, and cite Bannon v. Comegys, 69 Md. 411, 418, 16 A. 129, as authority for this view. They also cite on this point 35 C.J. 982, § 67, and cases therein cited--that the assignment of a lease to a corporation organized by partnership lessees is a breach of the covenant of the lease, but we are not confronted with that objection here, as the undisputed testimony is that the lessors have, by their conduct, waived a forefeiture (if any) of the breach. 35 C.J. 1077, § 252; Consumers' Ice Co. v. Bixler, 84 Md. 437, 447, 35 A. 1086. The lessors, apparently, were content with eliciting from the Greek, who had some difficulty in understanding the questions put to him, the statement of fact that he, his wife, and Leosatis had obtained from them a lease which they had assigned to the corporation. The words "assign," "assignee," and "assignment" were used only in the questions asked the witness on cross-examination, to which his answers were "Yes, sir." There is no doubt that the corporation was formed and that it was conducting the business in the premises leased, and that the brother-in-law thus came into it. The record, however, shows that the record evidence of the lease is still in the names of the original lessees, Andrews, his wife, and Leosatis, and that they hold the legal title to the leasehold estate. In the absence of any legally sufficient proof of an assignment in compliance with the requirements of the rules of evidence and the recording statutes or other clear proof that the plaintiff had no right to enforce or protect, the court must take the record as it is presented and decree accordingly. So, while the plaintiffs may not have a substantial interest in the lease, or may not be necessary or indispensable parties, which we do not here decide, are they proper parties and is the effect of the contention, if sound, to leave the suit without a plaintiff? The rule, in cases of assignment, as stated by Story's Equity Pleading (10th Ed.) § 153, is: "In general, the person having the legal title to the subject matter of the bill must be a party (either as plaintiff or defendant), although he has no beneficial interest therein; so that the legal right may be bound by the decree of the court. In cases, therefore, where an...