Opinion
March 13, 1950.
Action to recover damages for breach of agreement whereby plaintiff was accorded the first opportunity to negotiate with defendant Rink Realty Corporation for a lease of certain premises. On appeals by plaintiff and said defendant from an order granting in part and denying in part plaintiff's motion for examination before trial of said defendant as an adverse party, order modified on the law and the facts by striking from the first ordering paragraph the words "items 2 to 12 inclusive and item 14," and by substituting in lieu thereof the words "items 2-13 inclusive," and by striking from the last ordering paragraph the words "items 1(b) and 13" and substituting therefor the words "items 1(b) and 14". As so modified, the order is affirmed, without costs, the examination to proceed on five days' notice. Order granting motion of plaintiff for discovery and inspection of books and records of defendant Rink Realty Corporation reversed on the law and the facts, with $10 costs and disbursements, and the motion denied, with $10 costs. Loss of prospective profits cannot be deemed a proper element of damages for the alleged failure by defendant Rink Realty Corporation to lease to plaintiff. ( Giles v. O'Toole, 4 Barb. 261; Taylor v. Bradley, 39 N.Y. 129, 142; Dodds v. Hakes, 114 N.Y. 260; City of New York v. Pike Realty Corp., 247 N.Y. 245.) The alleged obligation of said defendant to afford plaintiff the first opportunity to negotiate with it for a lease of the premises did not carry with it any obligation by said defendant to sell its business to the plaintiff. In consequence the conduct of the garage business by said defendant and the sale thereof are irrelevant in this litigation. The validity of the provision in the settlement agreement which affords plaintiff the first opportunity to negotiate, placed in issue by denial and separate defense, is a proper subject of examination before trial. ( Gramatan Nat. Bank Trust Co. of Bronxville v. Sagamore Apts., Inc., 241 App. Div. 840; Dorros, Inc., v. Dorros Bros., 274 App. Div. 11.) Carswell, Acting P.J., Johnston, Sneed, Wenzel and MacCrate, JJ., concur.