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Law School Case Brief

Bovin v. Galitzka - 250 N.Y. 228, 165 N.E. 273 (1929)


The general rule for construing restrictive covenants or conditions contained in a lease is to so construe them as to carry out the intent of the parties. The intent of the parties must be ascertained from an examination of the whole lease, and not from the particular clause alone.


Plaintiff landlord and defendant tenant entered into a lease agreement for a term of five years at an annual rental of $1200. It described the premises leased as "the corner store and part of cellar in building known as No. 3001 Avenue N....to be used and occupied Real Estate Office." The landlord filed  sought to procure an injunction restraining against the tenant and the sublessees from using the premises for any business other than a real estate office. The complaint alleged that the lessee sublet the premises and that they were using the premises for a grocery and dairy store in violation of their lease agreement. Thus, the landlord demanded judgment that the sublease be declared void and that the sublessees be enjoined and restrained from using the premises as a store. The trial court granted the tenant's motion for judgment on the pleadings for failure to state a cause of action. On appeal, the court ruled in favor of the landlord stating that the lease language concerning the "real estate office" amounted to a restrictive covenant, which barred use of the premises was as a store. The tenant appealed.


Were the words "to be used and occupied Real Estate Office" in a lease a restrictive covenant that prevented the lessee or his sublessees from using the leased premises for any purpose other than a real estate office?




The state's highest court held that the nature of the premises, the fact that the premises could be sublet without the landlord's permission, and the language of the lease prohibiting the use of the property for any disreputable or extrahazardous purpose, all indicated that the words in question were not intended to constitute a restriction upon the use of the premises by the tenants or his subtenants. Thus, the court reversed the order of the appellate division in favor of the landlord and affirmed the order of the trial court in favor of the tenant.

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