HEMPSTEAD THEATRE CORP. v. METRO. PLAYHOUSES, INC.


308 N.Y. 712 (1954)

Hempstead Theatre Corporation et al., Respondents, v. Metropolitan Playhouses, Inc., et al., Appellants, et al., Defendants.

Court of Appeals of the State of New York.

Decided December 31, 1954


Attorney(s) appearing for the Case

Lester Samuels, Milton C. Weisman and Louis M. Weber for appellants.

Bernard Bernstein and Stanley D. Halperin for respondents.

DESMOND, DYE, FULD and FROESSEL, JJ., concur in Per Curiam opinion; VAN VOORHIS, J., dissents in an opinion in which LEWIS, Ch. J., and CONWAY, J., concur.


Per Curiam.

We agree with the courts below that the cause of action under attack should not be dismissed for legal insufficiency. It is impossible to say what facts may be developed under the allegations of this cause of action at the trial. It may not be said, as a matter of law, that the term "gross receipts", as used in the percentage lease before us, excludes the entire amount of $2,000,000 recovered by the tenant...

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