S.H. Kress & Co. v. Fine

Decision Date22 April 1960
Citation25 Misc.2d 500,202 N.Y.S.2d 368
PartiesS. H. KRESS AND COMPANY, Plaintiff, v. Jacob A. FINE, individually, and The LPN 1st Ave. Corp., and Louis P. Neustein, jointly and individually, Defendants.
CourtNew York Supreme Court

Hughes, Hubbard, Blair & Reed, New York City (John C. Fontaine, New York City, of counsel), for plaintiff.

Sydney J. Schwartz, New York City, for defendants LPN and Neustein.

Jules E. Perlman, New York City, for defendant Fine.

WM. C. HECHT, Jr., Justice.

Defendant Neustein moves for dismissal of each cause of action for legal insufficiency. The complaint contains six cause of action. The fifth and sixth have been discontinued. Only the third and fourth causes are asserted against the moving defendant.

Plaintiff and defendant The LPN 1st Ave. Corp. are the landlord and tenant, respectively. The lease contains a provision as follows:

'Tenant covenants and agrees that at any time during the life of this agreement, landlord by One Hundred and Twenty (120) days notice to tenant, may concel this lease, without any liability on its part for so doing in the event that * * *:

'(a) Said premises are sold or exchanged by landlord * * *. Landlord agrees not to sell the premises hereby demised or the leasehold interest therein * * * to any person, firm, partnership or corporation other than the tenant herein unless the landlord first receives a bonafide offer in writing from a third party in no way connected with landlord or landlords interests. In the event landlord receives such an offer, landlord hereby agrees to submit evidence of such offer to tenant and to offer to sell * * * the demised premises * * * to tenant at the same price * * * and terms and tenant shall have thirty (30) days after receipt of such offer from landlord to accept or decline same; * * *'.

The defendant Neustein did, in writing, guarantee the payment of 'rent, or any arrears thereof, or any other sum or sums, provided to be paid by The LPN 1st Ave. Corp. under any of the terms of said attached lease, that may remain due unto Kress, its successors or assigns, or that may become due, and any and all damages that may arise in consequence of the non-performance of any of the promises, covenants and agreements of said attached lease, without requiring any proceedings to be taken against The LPN 1st Ave. Corp. for the collection of such amount or amounts, provided, however, that Louis P. Naustein shall be given notice of such default and shall be given fifteen (15) days after receipt of said notice within which to cure such default.'

A contract of sale dated September 2, 1959, was made with the defendant Fine. By letter of September 11, 1959...

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3 cases
  • United States v. Bedford Associates, 79 Civ. 1522
    • United States
    • U.S. District Court — Southern District of New York
    • March 18, 1980
    ...property. See, e. g., Nickerson v. Canton, Marble Co., 35 App.Div. 111, 54 N.Y.S. 705 (3d Dep't 1898); S. H. Kress & Co. v. Fine, 25 Misc.2d 500, 202 N.Y.S.2d 368 (Sup.Ct.N.Y.Co.1960); Law Center Inc. v. Trust Co. of North America, 84 N.Y.S.2d 577 Section 2409a is labelled "Real property qu......
  • Continental Cas. Co. v. Lester
    • United States
    • New York Supreme Court
    • May 23, 1960
  • S. H. Kress & Co. v. Fine
    • United States
    • New York Supreme Court — Appellate Division
    • February 28, 1961
    ...New York City, for defendant-respondent. Order and judgment unanimously affirmed with costs to respondents. No opinion. See also 25 Misc.2d 500, 202 N.Y.S.2d 368. ...

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