Opinion
November 6, 1961
In an action by tenants who leased one of two stores in a building and operated a retail grocery and dairy business in the leased store, against their landlords, defendants Greenblatt, Tenzer, Holland and Taishoff, and against the lessee of the other store, Woodbury Meat Co., Inc., for an injunction and damages by reason of their alleged violation of a restrictive covenant in plaintiffs' lease, in that the Woodbury corporation conducted, in direct competition with plaintiffs, a grocery and dairy business in its meat market, in which the landlords and the Woodbury corporation asserted cross complaints against each other, the Woodbury corporation appeals, as limited by its written stipulation, from so much of a judgment of the Supreme Court, Queens County, entered April 24, 1961, upon the decision of the court after a nonjury trial, and from so much of an order of said court entered June 7, 1961, amending such judgment, as: (a) enjoins it from conducting in its store, as a distinct branch of its meat business, a grocery and dairy business, until the expiration of plaintiffs' lease on May 31, 1970; (b) awards plaintiffs $2,340 damages and costs against it; and (c) dismisses its cross complaint against said landlords. Judgment and order amending the judgment, insofar as appealed from, affirmed, with costs. No opinion. Beldock, Kleinfeld, Christ and Pette, JJ., concur; Nolan, P.J., dissents and votes to reverse the judgment and order, with the following memorandum: The covenant in plaintiffs' lease, which plaintiffs seek to enforce by injunction and in which their landlords agreed that they would not lease any other portion of the premises for a retail dairy or grocery, also provided that they might lease other portions of the premises to other tenants conducting a different type of business or store, who would be permitted to sell some of the articles of merchandise commonly carried in grocery or dairy stores. Such covenant is too vague, indefinite and uncertain to be enforced by injunction. If it be assumed, however, that an injunction was proper, the judgment should at least be modified so as to provide definitely what the defendant Woodbury corporation may not do in the conduct of its business. An injunction should clearly inform a defendant of the acts he is forbidden to do ( May's Furs Ready-to-Wear v. Bauer, 282 N.Y. 331; International Latex Corp. v. Flexees, 281 App. Div. 363). [ 28 Misc.2d 403.]