City of New York v. Cokenes

Per Curiam. The city of New York and Peter J. Cokenes entered into an agreement in writing dated June 26, 1923, for the rental by the defendant Cokenes of certain space in the St. George Terminal of the Staten Island Ferry for a period of five years from July 1,1923, to July 1,1928, at an agreed sum payable quarterly in advance. The space in question was to be used for lunch counters, refreshment and newspaper stands and for the sale of fruit and similar articles. The defendant, appellant, Union Indemnity Company issued its bond guaranteeing the payment of the rent provided for by the terms of the agreement. The rent not having been paid, four actions were commenced to recover the amount due and also the amount alleged to be due because of a resale of certain privileges upon the default in payment of rent by the concessionaire. The Special Term properly disposed of all the defenses except the fifth and sixth in the second Cokenes action. It appears to be assumed by the respondent that these defenses were stricken out, but the order entered thereon denied the motion to strike out the fifth and sixth defenses. They are similar to other defenses that have been stricken out. No appeal was taken by the city from the order denying that part of the motion. The third alleged defense to the first cause of action appears to be the only defense requiring consideration. That defense is to the effect that there was an actual partial eviction of Cokenes and, therefore, no obligation to pay the rent. The Special Term held that the facts alleged did not constitute a defense to the action. The defendant, appellant, contends that the agreement was not a lease and that although defendant Cokenes remained in possession of the premises, accepting all the benefits, collecting all the profits and enjoying the rights and privileges granted therein, he is not liable for the rent. Several sign privilege cases and cases of similar purport are cited to establish the fact that the agreement is not a lease. In Gushee v. City of New York (42 App. Div. 37) the court said: “ He bound himself during that same time to pay for the rights he acquired the sum of $525 a month. This agreement, involving, as it did, the possession of real estate and the payment of a monthly rent for it, was practically a lease.” It is clear, therefore, that these privileges are governed by the [697] general rules governing leases. (City of New York v. Pike Realty Cory., 247 N. Y. 245.) It is contended that because the city of New York made certain alterations, repairs and improvements to the ferry house, and granted privileges to other parties, the defendant C.’okenes is not required to pay rent for the time that he actually retained possession of the premises. It is not alleged that there was a provision in the lease giving the defendant Cokenes the exclusive privilege to sell to the public in or about the ferry terminal building. If the city intended to give such an exclusive privilege, that would in all probability have been stated in the agreement. That condition will not be presumed. In addition, an exclusive privilege would have probably been much more expensive. The defendant Cokenes remained in full possession and enjoyment of the privilege granted by the lease or license, and neither surrendered his possession nor abandoned the premises. The fact that the city saw fit to rent similar privileges on the ferry boats to other people and to make repairs or alterations which it is claimed restricted the defendant Cokenes’ ability to cater to the full trade which he might otherwise have obtained, is not a defense to this action in the absence of an agreement giving that defendant such rights. There was no agreement on the part of the city that it would not repair, maintain or improve the premises, and the reasonable presumption is that it had an absolute right to do so; in fact, there was an obligation on the part of the city to keep the ferry houses in good condition. There does not appear to have been any actual partial eviction and in the absence of abandonment there can be no claim of constructive eviction. The defendant Cokenes, having obtained possession of the premises, having accepted and enjoyed the benefits of the lease or agreement, must pay the rent reserved by the terms thereof. (City of New York v. Pike Realty Corp., supra.) The Special Term properly held that the facts alleged did not constitute a defense to the action. The orders appealed from should be affirmed, with ten dollars costs and disbursements. Present — Dowling, P. J., Finch, McAvoy, Martin and O’Malley, JJ.; Finch and McAvoy, JJ., dissent.