Borough Bill Posting Co. v. Levy

Burr, J. : The American Bill Posting Company contends that the instrument dated April 20, 1910, executed by Joseph Levy and the Borough Bill Posting Company, is not a lease, and had no greater effect than a mere parol license from the former to the latter,, and that as such it was' revocable at will, notwithstanding the licensee may have incurred expenses upon the faith thereof. (Mumford v. Whitney, 15 Wend. 380 ; Murdock v. - Prospect P. & C. I. R. R. Co., 73 N. Y. 579 ; Cronkhite v. Cronkhite, 94 id. 323; Crosdale v. Lanigan, 129 id. 604; White v. Manhattan R. Co., 139 id. 19 ; Brown v. City of New York, 78 App. Div. 361; affd., 176 N. Y. 571.) The Borough Bill Posting Company contends that if not a lease for a definite term, the instrument constituted a’personal contract ; between the parties thereto, and because an action for damages affords inadequate remedy, it may come into equity for a specific performance thereof. (Beer v. Canary, 2 App. Div. 518 ; Goldman v. New York Advertising Co:, 29 Misc. Rep. 133.) This seems to have been the view adopted by the learned judge -át Special'Term.* There may be difficulty in maintaining this position due to the fact that in its action the Borough Bill Posting Company is seeking relief in effect by way of specific performance, and as an incident thereto by way of injunction, against one not a party to the contract; and if the contract is simply a personal one, and not one which establishes some interest in the land, it is seeking relief against one ' who is not a privy to either of the parties thereto. Conceding that the instrument in question is not a- lease,' we think it is more than a parol license, and that it gives to the [787] Borough Bill Posting Company an easement in gross for oneij year from the date thereof, which is irrevocable during the'j period specified. (Jones Ease. § 33; Washb. Ease. 45, subd. 2; Id. 144, subd. 20.) Bouvier defines a license to be: “A permission to do some act or series of acts on the land of the licensor, without having any permanent, interest in it.” (Bouvier L.' .Diet., tit. License.) Chancellor Kent says: “This distinction between a privilege or easement, carrying an interest in land, and requiring a writing within the Statute of Frauds to sup-' port it, and a license which may be by parol, is quite subtle, and it becomes difficult in some of the cases to discern a substantial difference between them.” (3 Kent Comm. 452.) In Mumford v. Whitney (supra) plaintiff sued to recover damages for the overflowing of his lands by the erection of a dam. by the defendant. Among other defenses, defendant claimed a parol license from plaintiff. A verdict for defendant was sustained upon other grounds, but in the course of the opinion Chief Justice .Savage, in attempting to draw the distinction between a license and an easement or a lease, said: “If A agrees with B that he may enter upon his land, and occupy it for a year, that is not, properly speaking, a license ■merely; it is more—it is a lease, * * *. Where an interest greater than a temporary occupation "was to be created, it might be an easement, as a right of way; such an easement is, or may be, a permanent interest in the land over which the right of way exists, and must be founded upon grant or prescription, which supposes a grant. Such an interest is not properly a license; it may be assigned, and cannot be revoked.” In Cook v. Stearns (11 Mass. 536), quoted with approval in Mumford v. Whitney {supra), the court say: “Licenses to do a particular act do not in any degree trench upon the policy of the law which requires that bargains respecting the title' or interest in real estate shall be by deed or in-.writing. They amount to nothing more than an excuse for the act, which would otherwise be a trespass. But a permanent right to hold another’s land for a particular purpose, and to enter upon it at all times without his consent, is an important interest, which ought not to pass without writing, and is the very object provided for by our statute.” [788] “Licenses, which, in their nature amount to the granting of an estat¿ for ever so short a time, are not good without deed. ’’ The reason for the rule is that they are not strictly speaking licenses, but conveyances of an interest in the land itself: That the word “permanent” is here used, not in the sense of perpetual, but as relating to some specified period, be it short or long, is asserted in Cook v. Stearns (supra) and made clear in the case of Pierrepont v. Barnard (6 N. Y. 279, 288). In that case, in illustrating the difference between an easement and.a license, the court says: “The marked and leading distinctions between them are, that in the former there is a permanent interest in the land for some specified period, amounting to an estate in the land, which is assignable, is irrevocable, and gives a right at all times to enter and remain in possession, during its continuance; while the latter-is a mere authority to enter upon the land. of another for a temporary purpose and to do a particular act or series- of acts upon the land.” In Bagg v. Robinson (12 Misc. Rep. 299, 304) the court say: An interest in land for a specified period is an easement. In this case we have an instrument which- satisfies the requirements of the Statute of Frauds (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], § 242). Construing this instrument in the light of. the foregoing authorities,- it is apparent that the parties contemplated, the one to grant and the other to- receive, a privilege which was to be continued for a definite period, to wit, one year, with a right of renewal, unless this privilege is sooner terminated by conditions which do not exist in this case. It contemplates a privilege which is not only specific but exclusive in its character and authorizes the Borough Bill Posting Company, not only to make use of the fence or signboards to be located on the property therein described, but permits also the erection of other fences and signboards by it on said premises, which should remain its property and which it should have the right to remove at the expiration of the period, and it necessarily involves the right to go upon the premises in question to accomplish each of these purposes. • We think, therefore, that this is more than a license, that it is an easement, and there being no dominant estate to which the easement [789] might attach, it is an easement personal in its character, or, as it is sometimes called, an easement in gross. Although such an easement is a personal privilege, it is more than a revocable license. It confers an interest in the servient tenement which is at least an equitable charge or burden in favor of the grantee. (Jones Ease. § 33.) The appellant, the American Bill Posting Company, relies upon three cases to support its contention that the effect of the instrument in question is to create a license only, revocable at will. None of these is sufficient for that purpose. In United Merchants Realty & Imp. Co. v. N. Y. Hippodrome (133 App. Div. 582) all that the court decided was that a privilege for a year to make use of the roof of plaintiff’s building to display advertisements thereon did not create the conventional relation of landlord and tenant so that failure to remove one of these signboards at 'the end of the term enabled the plaintiff as the owner of the building to treat defendant as a tenant holding over. The court said: “ Whatever may be said 'to be the relation between the parties during, the continuance of the agreement, the fact that the defendant did not remove the bulletin board from the top of the plaintiff’s building during the time that the agreement s was in force was not a holding over of the premises which entitled the plaintiff to elect to continue the agreement for another year.” Reynolds v. Van Beuren (155 N. Y. 120) was an action for damages by a person who, while passing along the street) was injured by a signboard blown from the roof of a building during a storm accompanied by a strong wind. It appeared that defendant did not erect the signboard, and was not responsible for its maintenance, but simply had the privilege of going upon the roof and placing advertisements thereon. Such a privilege was much narrower and more restricted than the one ía the case at bar. In determining'.that such an agreement between defendant and the owner of the building was not a lease, the court did say that it was a mere license. ’ But in that case the court was concerned rather to consider defendant’s responsibility to the injured party than to accurately define the character of the instrument in question, for, after [790] speaking of it as a license, the court says that plaintiff cannot, take advantage of its terms for the reason that he “is a stranger to the agreement, ivhatever it may be held to mean. He is not a party or privy to it, and if it be shown that the defendants failed to perform their agreement with the tenant, that does not prove that they have done any wrong to the plaintiff. ” In Lowell v. Strahan (145 Mass. 1) the court, in construing ■ an authority given to' a party to affix a sign to the outer wall of a building, say: “An agreement of this nature cannot be construed as a lease; it must create either a license or an easement.” The court did not .in that case determine which. In Goldman v. New York Advertising Co. (supra), in construing an agreement giving defendant the right to place an advertisement upon the westerly wall of a house for a year, and holding that it was not liable in damages to the owner of the property for failing to erase the same, the court said: “It is unnecessary for the determination of this appeal to decide whether the paper here in question created a license or an easement, or was merely a simple contract betweeen the parties. It is sufficient that it was not a lease,” x . We think, therefore, that Joseph Levy, the owner of the premises, had no right to revoke the privilege conferred upon the Borough Bill Posting Company during the period specified in the agreement, and that the orders in each of the above-entitled cases should be affirmed, with- ten dollars costs and disbursements. ‘ • . Jenks, P. J., Thomas and Carr, JJ., concurred; Hirsohberg,. J., dissented. In each case order affirmed, with ten dollars costs and disbursements. Footnotes [*] See Borough Bill Posting Co. v. Levy (70 Misc, Rep. 608). —[Rep.