Hussey v. Metropolitan Exhibition Co. 19 Jones & S. 510, 51 N.Y. Super. Ct. 510

MERRILL HUSSEY, Appellant, v. THE METROPOLITAN EXHIBITION CO., Respondent.

Decided December 1, 1884.

Contract granting sole and exclusive rights—construction of.

Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.

Appeal from judgment dismissing the complaint entered upon the direction of the trial judge.

Action by the appellant against the respondent company upon an instrument in writing, the principal clause of which was as follows : The respondent by “these presents doth grant and assign unto the said party of the *511second part (the appellant) the sole and exclusive right and license to sell and vend wines, liquors, beer, cigars and all other refreshments of what nature or kind soever upon the premises known as the Polo Grounds, situate at One Hundred and Tenth street, in the city and county of Hew York, for the term of nine months, to wit: from the thirty-first day of May, one thousand eight hundred and eighty-three, to the thirty-first day of December, one thousand eight hundred and eighty-three, and to use, enjoy and have possession of the bar under the grand stand upon said grounds, together with the fixtures and furniture now therein, and of a temporary structure or bar, to be hereafter erected by the party of the first part upon the western portion of the said grounds, to be used by the American Association Clubs, for the purpose of selling and vending as aforesaid.”

The court at General Term said : “ We are of the opinion that the complaint of the plaintiff was properly dismissed. Our construction of the agreement between the plaintiff and defendant is in harmony with that given to it, by the learned judge upon the trial. Such construction is that the sole right, to the exclusion of others, was granted to the plaintiff to sell and vend wine and beer upon the premises known as the Polo Grounds, but that the exercise of the right to vend was limited to the bar under _the grand stand, and to the structure or bar to be erected upon the western bank of the grounds. Such construction, we apprehend, does not violate, but is in accord with the rules of construction which the counsel for the appellant has carefully cited. In this view the prohibition from selling liquor on the grand stand, the breach complained of, was not a violation of the agreement, and gave the plaintiff no ground of complaint. The parties themselves seem to have understood the agreement. For, notwithstanding the prohibition to sell upon the grand stand, the plaintiff paid his rent monthly without objection, except the rent of the last month, whereas had he supposed that he had any ground of complaint, he *512could have insisted under the agreement, upon a deduction of rent from time to time.

Robert Jackson, for appellant.

George F. Duysters, for respondent.