Opinion
February 16, 1959
Present — Nolan, P.J., Beldock, Murphy, Ughetta and Hallinan, JJ.
In an action to restrain the use of a store, located in a shopping center, for dry cleaning and for shoe repairing, and to recover damages, the appeal is from a judgment entered after trial dismissing the amended complaint as to respondents on the merits. Judgment unanimously affirmed, with costs, and without prejudice to an action at law if appellant shall be so advised. The evidence justifies the finding that at the time of the execution of the lease between respondent Associated Property Management, Inc., as landlord, and respondent Prosperity Leasing Corp., as tenant, the latter had no knowledge of the restrictive covenant in the unrecorded agreement to which it was not a party. Under such circumstances, an injunction may not be granted (cf. Hodge v. Sloan, 107 N.Y. 244, 250; Colbee 52nd St. Corp. v. Madison 52nd Corp., 8 Misc.2d 175, 180, affd. 5 A.D.2d 971; Senn v. Ladd, 179 Misc. 306). Appellant may still have an adequate remedy at law for damages against the landlord (cf. Senn v. Ladd, supra).