At the time of the execution of the agreement between the parties the defendant was a jeweler at 313 & 315 Fulton street, Brooklyn. His lease expired the 1st of May, 1892. The agreement to furnish the plaintiff with a show case and shelving to conduct a stationery business in the defendant’s store was absolute, and'required the furnishing of the same in that store, and under the then existing condition, until the end of the privilege, which was from April 6, 1887, to May 1, 1892. The two businesses manifestly fitted each other, and it was a breach of the agreement for the defendant to lease out the store to two people, one part for a dyeing establishment and the other part for a secondhand clothing store, with a partition in the middle of the same, or nearly so. The businesses were incongruous with that of plaintiff’s, and the store size was reduced. Evidence given to establish that the substituted businesses were not fitted to the plaintiff’s was immaterial, and did no harm. No evidence was needed. The payment to be made by the plaintiff for the privilege was to be determined by the sales of the business. It was to be 5 per cent, of gross sales made by plaintiff up to May 1, 1888, and 10 per cent. of such gross sales from May 1, 1888, to May 1, 1892. It was made an issue whether the plaintiff consented to the termination of the privilege, but the jury have found against the defense as not being the fact.
The judgment should be affirmed, with costs. All concur.