C. L. Holding Corp. v. Schutt Court Homes, Inc.

Callahan, J.

(dissenting). A distinction based on the nature of the meats to be sold in a delicatessen store and in a store for the sale of fresh meats was well established in the city of New York at the time of the execution of the present lease. Prior to the making of this lease the lessee told the landlord that the business the lessee proposed to carry on would be similar to that carried on in other stores operating under the name of New Yorker Delicatessen Stores. He also informed the landlord that meats to be sold would be processed meats precooked or frozen, and that no fresh meats would be sold. It seems to me that there is ample evidence to support the finding of the trial court granting reformation so as to limit the sale of meats in the leased premises to delicatessen and processed meats only and that such terms have a sufficiently well known meaning in this city to make the reformed lease definite and certain. The judgment should be affirmed.

Peck, P. J., and Cohn, J., concur with Bebgan, J.; Callahan, J., dissents in opinion in which Van Yoobhis, J., concurs.

Judgment modified by reversing so much thereof as granted judgment to plaintiff, and by dismissing the complaint, with costs to defendants, and, as so modified, affirmed, with costs of this appeal to defendants-appellants. Settle order on notice. [See post, p. 916.]