Louis Friedman Realty Co. v. De Stefan

Lydon, J. The plaintiff was the owner of a parcel of unimproved land situated at Roosevelt avenue and Voorhees place, Elmhurst, in the borough of Queens, in the city of New York. On April 28, 1925, the plaintiff and defendant entered into a written lease of said parcel of land for a term of five years, commencing May 1, 1925, and terminating April 30, 1930, “ to be used and occupied as a gasoline station and for garage purposes.” The rent was fixed at $75 per month for the first two years and $100 per month for the balance of the term. The lease further provided for the deposit by defendant of the sum of $500 to be held by the landlord as security for the erection by the tenant of improvements consisting of the gasoline station and garages upon the premises demised. The defendant made said deposit, and paid the rent for three months, to wit, $225. At the time of the execution of the lease and prior thereto the premises demised were affected by the zoning restrictions adopted by the board of estimate and apportionment of the city of New York, which restricted the use of the premises to “ business purposes only,” but apparently neither party knew that fact. The tenant, as required of him by the lease, applied to the fire department for a permit to erect the structures necessary for a gasoline station. This was refused, as it would be a violation of the Building Zone Resolution provisions prohibiting the operation of a gasoline station on or in the vicinity of the premises which are the subject of the lease. After learning that he could not erect the gasoline station defendant refused to pay the rent and demanded the return of the money already paid to the landlord. The lease entered into between the parties clearly evidences the fact that the premises were leased by plaintiff to the defendant to be used only as a gasoline station and for garage purposes. “ Express words of restriction are not necessary where the language used shows that no other use was to be permitted tba.n that specified.” (Kaiser v. Zeigler, 115 Misc. 281.) It is now well settled that a lease of premises for an illegal purpose is void. (Raner v. Goldberg, 215 App. Div. 355; Doherty v. Eckstein Brewing Co., 115 Misc. 175; affd. 198 App. Div. 708, 712; Kaiser v. Zeigler, 115 Misc. 281.) The defendant set up the defense of illegality and also counterclaims for $725, the amount of rent and security paid. The attempt of the landlord’s attorney to [610] extend the use of the premises by his letter of August 3, 1925, “ for any business purpose ” does not alter or validate the lease. The lease was void from the beginning. On the agreed state óf facts submitted to the trial judge the complaint should have been dismissed and judgment rendered for defendant on his counterclaim. Judgment reversed, with $30 costs, complaint dismissed and judgment ordered for the defendant on his counterclaim in the sum of $725, with costs. Delehanty, J., concurs in result.