Opinion
December 30, 1942.
Present — Hagarty, Johnston, Taylor and Close, JJ; Lazansky, P.J., not voting. Settle order on notice.
Plaintiff sued the 4201 Avenue D Realty Corporation, which owned a row of attached stores, one of which plaintiff occupied, and two individual tenants of a store adjoining plaintiff's, for an injunction restraining the violation of a restrictive covenant in plaintiff's lease and for damages for alleged violations in the past. In an interlocutory judgment entered after a trial, the complaint was dismissed as to the individual defendants, and plaintiff was awarded injunctive relief and damages against the said corporation. The taking of the account to ascertain damages was referred to an Official Referee, who found that the plaintiff failed to produce any evidence of loss of profits but, nevertheless, awarded him substantial damages. The court at Special Term reduced the damages to six cents, but permitted the injunction to remain in the judgment. The 4201 Avenue D Realty Corporation appeals from the final judgment, and from so much of the interlocutory judgment as grants injunctive relief and awards damages. Plaintiff appeals from so much of the final judgment as reduces the damages, and brings up for review the intermediate order modifying the report of the referee, and the interlocutory judgment. Final judgment modified on the law and the facts by inserting after the word "business" in next to the last line of the second ordering paragraph the words "but this provision shall not affect the existing lease to defendants Margaret Jackson and May Davison." As thus modified, the final judgment is unanimously affirmed, with costs to plaintiff, payable by 4201 Avenue D Realty Corporation. The interlocutory judgment and order are unanimously affirmed, without costs. The injunctive provision of the final judgment must be eliminated because the store in the premises No. 4201 Avenue D was leased to defendants Jackson and Davison prior to the entry of the interlocutory judgment, and at the time the lease was executed they had no notice or knowledge of the restrictive covenant contained in plaintiff's lease. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made.