Times Square Improvement Co. v. James McCreery Realty Corp. 228 N.Y. 597

Times Square Improvement Company, Inc., Appellant and Respondent, v. The James McCreery Realty Corporation, Respondent, Fleischmann’s Vienna Model Bakery, Inc., Appellant, and Reuben Sadowsky, Respondent and Appellant.

Times Square Improvement Co., Inc., v. McCreery Realty Corpn., 182 App. Div. 653, affirmed.

(Argued March 15, 1920;

decided April 13, 1920.)

Appeals from a judgment, entered May 10, 1918, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff and defendants appellants, entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. Defendant McCreery Realty Corporation leased the store and basement of premises on Broadway, New York city, to defendant *598Fleischmann’s Vienna Model Bakery for a term of years. Contiguous to the basement was a vault under the sidewalk used in connection with the leased premises. Thereafter the realty company leased the entire building to defendant Sadowsky subject to the Fleischmann lease, which lease was assigned to him. Thereafter Sadowsky executed a lease to the Fleischmann Corporation extending its tenancy so that it would terminate at the same time as his own. Thereafter Sadowsky subleased all of the premises to the plaintiff subject to all of the covenants and conditions in the preceding leases. The city of New York having reclaimed for subway purposes a substantial part of the vault space, the Fleischmann Corporation refused to pay the entire rent and in an action brought against it by this plaintiff a judgment was obtained substantially reducing its rent on account of the partial eviction by the city. This action was brought to have set aside all of the said leases and agreements or for an apportionment of rent or for damages. The Appellate Division held that plaintiff being a mere sub-lessee of Sadowsky there was neither privity of contract nor estate between it and defendant McCreery Corporation with reference to the demised premises, and, therefore, that its complaint should be dismissed.

Joseph A. Seidman for plaintiff, appellant and respondent.

Louis Solant for Fleischmann’s Vienna Model Bakery, Inc., appellant.

Morton Stein for Reuben Sadowsky, appellant.

George L. Ingraham for McCreery Realty Corporation, respondent.