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82-10 ROOSEVELT AVE., INC., v. SACHS

197 Misc. 897 (1950)

82-10 Roosevelt Avenue, Inc., Landlord, Appellant, v. Irving Sachs et al., Copartners Doing Business as Sachs Bros., Tenants, Respondents.

Supreme Court, Appellate Term, Second Department.

May 24, 1950.

Attorney(s) appearing for the Case

Victor Whitehorn and Jules Whitehorn for appellant.

Joseph J. Porte and Winfield De Witt for respondents.

RUBENSTEIN and STEINBRINK, JJ., concur in memorandum by the court; COLDEN, J., dissents in memorandum.

MEMORANDUM BY THE COURT.

The trial court apparently misconceived the law as well as the theory upon which the case was tried. Landlord relied on the agreement of November 22, 1948, with the tenant's predecessor, King & King, Inc., which agreement purported to fix a reasonable rental for the premises. The decision, however, was predicated upon a ground not urged by either side, namely, that the parties were not authorized to fix

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