Opinion
June 10, 1954.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, STARKE, J.
Nathan H. Elman for appellant.
Harry N. Borsher for respondent.
The arrangements recently made for the use of tenant's facilities for a fixed term and rental merely constituted an efficient and concentrated manner of conducting its "sound studio" business. Tenant's customers were not desirous of using its space as such but rather its specially built studios containing highly specialized equipment. Such fixed arrangements were not such a departure from its customary method of hiring out its studios for use by others as to entail a forfeiture of the lease on the ground of a violation of the printed clause therein prohibiting assignment, subletting or use by others without prior written consent. Such restrictive covenant must be judged in the light of former landlord's knowledge when executing the lease that a "sound studio" business was operated by renting its studios to the trade. So long as tenant did not surrender possession and control but remained to supervise its business and care for the premises, landlord was not concerned with the term or manner of such use. Tenant did not breach any obligation of its tenancy when it engaged in the very business for which that tenancy was created.
The final order should be reversed, with $30 costs, and final order directed in favor of tenant, with costs.
HOFSTADTER, EDER and SCHREIBER, JJ., concur.
Final order reversed, etc.