Opinion
April 19, 1943.
Herbert A. West and Louis W. Dawson for plaintiff.
James O. Wynn for defendant.
Motion for summary judgment made by the plaintiff. The action is to recover rent due under two written leases in the sum of $2,975, covering rent for the months of November and December, 1942, and January, 1943. The execution of the two written leases has been admitted, as well as the fact that this rent has not been paid. The only defense submitted is that by virtue of the provisions of War Production Board Order known as No. L-37-a (issued May 29, 1942, 7 Federal Register 4036) the defendant was released from liability on the leases. There is no merit to this contention because an examination of the leases themselves shows that the premises were to be used as a store for the sale and display of pianos. The restriction of the War Production Board order has to do with the manufacture, and not the sale, of pianos. Unless there is something in the order of the War Production Board making the use of the premises unlawful, there can be no release from the obligation to pay the rent set forth in the lease. ( Byrnes v. Balcom, 265 A.D. 268; Colonial Operating Corp. v. Hannan Sales Service, Inc., 265 A.D. 411, modfg. and affg. 178 Misc. 885, which reversed 178 Misc. 879.) Mere restriction of the manufacture of pianos cannot release the lessee whose lease calls for the use of the premises for the sale and display of pianos. The motion is granted. Settle order.