Schenk v. Franzreb

Judgment reversed upon the law and the facts and new trial granted, with costs to appellants to abide the event. Plaintiffs should have been permitted to prove the extent of their”occupancy and to establish that their leasehold, with defendant’s acquiescence and knowledge, included the small annex referred to as No. 104 Lincoln avenue. They should also have been permitted to show what was meant by the phrase in the lease “ seven rooms and store.” They were also entitled to the receipt in evidence of the deed to the defendant, the survey and the floor plans. If it shall be found upon the new trial that it was not the intention of the parties to include the small piece characterized as No. 104 Lincoln avenue in the lease and option, then plaintiffs are entitled to a judgment of specific performance for so much of the property as shall be found to have been included in such lease and option. If it shall be found that any portion of the leased property, land or buildings, encroaches upon the public street, the deed, if any, should make proper provision accordingly. Kelly, P. J., Jaycox, Manning, Young and Kapper, JJ., concur.