Opinion
April 10, 1939.
Appeals by defendants (1) from an order denying in part their motion to dismiss the complaint for insufficiency, and (2) from an order denying their motion to vacate plaintiff's notice of examination before trial. The action was brought for damages, alleged to be unrelated to rent, for violation of a written lease of business property. On the facts alleged in the complaint and admitted for the purposes of the motion addressed to the complaint, we find that there was implied in the lease a covenant that the tenant would not do anything that would bring about, or that would contribute to bringing about, a reduction of the gross value of sales made in the demised premises below the point at which the tenant was given the right to cancel the lease ( Genet v. D. H.C. Co., 136 N.Y. 593, 607, 608, 610, 611); that plaintiff has no cause of action for conspiracy; and that plaintiff's only cause of action is for such rent as it may show was unpaid under the lease as made and as modified. Order entered on motion addressed to the complaint, modified by striking out the second and third ordering paragraphs thereof and by adding a provision granting the motion to dismiss the complaint as to defendant Levy on both causes of action and defendant Crawford Clothes, Inc., as to the second cause of action, and, as thus modified, affirmed, without costs, with leave to plaintiff, within twenty days from the entry of the order hereon, to serve an amended complaint alleging the cause of action indicated herein. Order denying motion to vacate plaintiff's notice of examination before trial reversed on the law, without costs, motion granted, without costs, and examination heretofore taken suppressed, with leave to plaintiff to serve notice of examination under amended complaint appropriate to the allegations therein. Lazansky, P.J., Hagarty, Johnston, Adel and Taylor, JJ., concur. [ 170 Misc. 292.]