Opinion
June 17, 1957
In an action by a lessee of store premises against the owner of the building and the lessee of other store premises therein, to enjoin the sale of housefurnishings, hardware, and like articles by said other lessee, the Great Atlantic Pacific Tea Company, the appeal is from an order granting a motion for an injunction pendente lite and denying cross motions for summary judgment dismissing the complaint. Order reversed, without costs, motion for an injunction pendente lite denied, and cross motions for summary judgment dismissing the complaint granted. Respondent's lease provides that the sale of housefurnishings, hardware, and paints in sealed cans by another tenant in the building, incidental to the business of such other tenant, shall not be deemed a breach of the restrictive covenant in respondent's lease. The lease of the appellant tenant, which provides that said appellant may carry on a general merchandising business, contains no restrictive covenant. Since that lease antedates respondent's lease by almost a year, the appellant tenant, when it made its lease, could have had no notice of the restrictive covenant which respondent seeks to enforce. In the absence of such notice, respondent may not be afforded relief ( Senn v. Ladd, 179 Misc. 306, and cases cited). Wenzel, Acting P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur.