Opinion
No. 56/434.
05-17-1925
SNIDER v. TEN EYCK et al.
William Hartshorne, of Freehold, for complainant. Edward W. Wise, of Red Bank, for defendants.
Bill by Mas Snider against George B. Ten Eyck and others. Disposition of bill withheld until determination at law of certain issues cognizable at law.
William Hartshorne, of Freehold, for complainant.
Edward W. Wise, of Red Bank, for defendants.
BUCHANAN, V. C. Complainant, on December 6, 1922, leased to Orpheum Amusement Company, for use as a motion picture theater, a certain building then undergoing alterations to make it suitable for use as such theater, for the term of 10 years from the date when the alterations should be completed. By an additional lease on December 14, 1922, between the same parties, an adjoining or abutting store property was added to the subject-matter of the lease, as an entranceway into the theater.
On March 2, 1923, defendant Ten Eyck leased from complainant a billiard room and bowling alley on the second floor above part of the theater premises, for a term of 5 years, with option to renew for 5 years more. Ten Eyck was the principal stockholder of the amusement company (the lessee under the other lease). This lease of the billiard room and bowling alley contained a provision that the lessee Ten Eyck may "sublet" any or all of the thereby demised premises, to the Orpheum Billiard Company, but shall not sublet any or all of said premises to any one else without the prior written consent of the lessor. The Orpheum Billiard Company was not then in existence, but it was incorporated 10 days later (March 12th), and on March 14th Ten Eyck assigned the lease to the billiard company, of which he was also the sole or principal stockholder.
In June, 1924, the amusement company was adjudicated insolvent and a receiver appointed therefor. On August 5, 1924, the receiver surrendered and complainant accepted the premises comprised in the theater lease, or leases. Prior to that, but subsequent to the receivership, Ten Eyck sold his stock in the billiard company to Edward H. Burns and Alfred J. Schafer, who owned or had a controlling interest in the operations of the Strand Theater; the latter being a moving picture and vaudeville house located on the same street as the Orpheum Theater.
Complainant has arranged to operate his own theater premises, and by his bill prays decree (in effect), for the surrender and cancellation of the billiard room and bowling alley lease, or, if denied that relief, for decree enjoining defendants from using, or permitting to be used, the billiard room and bowling alley in such manner as to disturb the audiences in the theater.
The surrender and cancellation of the lease is asked upon the ground that the lease has been terminated by reason of (1) violation of its provisions against subletting without the prior written consent of complainant, and (2) by reason of the surrender and cancellation of the theater lease—the contention being that the bowling alley lease was a mere adjunct to the theater lease, of no value in and of itself, but only for the benefit of the theater lessee by way of protection of the theater; that, this was so understood by both parties to the bowling alley lease; that the bowling alley lease therefore must be understood as containing the implied condition that its continuance was dependent on the continuance of the theater lease; and that the surrender and termination of the theater lease ipso facto terminated the bowling alley lease.
It is unnecessary to go into the factsor the law in respect of this issue, for the reason that it seems to me clear that the issues as to the termination of the lease, on both grounds set up, are issues cognizable and determinable in a court of law, and that, inasmuch as they involve rights or interests in real estate, and defendants have made objection to their determination by this court, and no equitable issues supervening, under well-established principles all that can be done by this court on this branch of the case is to hold the bill until complainant can have the questions determined at law.
On the other branch or aspect of the case—the prayer for restraint of alleged nuisance—I think the determination may as well await the time when final decree can be made as to the surrender and cancellation issue, since that may be dispositive of the entire matter. No attempt has been made by the billiard company to operate the leased premises, and the answer denies any intention to operate it in a manner which would annoy the theater patrons. No preliminary Injunction was sought by complainant. If any change in the situation should occur pending the further proceedings, complainant might seek restraint pendente lite upon notice and the filing of affidavits, and might perhaps have leave to file supplement to his bill.
It may also be mentioned that leave was granted at the hearing to file certain amendments to the bill, and defendants announcing orally their admissions or denials to the additional allegations, the hearing proceeded as though the record was complete. In fact however no draft of order has been submitted to me as yet in this behalf, nor defendants' amended answer. This should of course be done.