
    Joseph Mehlman, Respondent, v. The Atlantic Amusement Company, Appellant.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Landlord and tenant: Creation and existence of relation — Lease or license: Rent and advances — Rights and liabilities — Injury to, destruction, or untenantable condition of premises — Injury to or destruction of building by fire.
    An instrument in writing “letting” the exclusive right to occupy a certain specified space for the purpose of maintaining certain candy stands in Steeplechase Park, Coney Island, and the store-room under the Steeplechase tracks from the opening day of the park to October 1, 1907, at a specified “rent” constitutes a lease and not a mere license.
    
      Where, after the last payment of rent had been made, the entire park was destroyed by fire, the tenant is not entitled to recover the proportion of the rent for the period between the date of the fire and the expiration of the lease.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of ISTew York, borough of Manhattan, second district.
    Frederick S. Martyn, for appellant.
    Maurice J. Katz, for respondent.
   Gildersleeve, J.

The defendant, by an instrument in writing designated therein as a “ lease,” contracted with plaintiff to “ let ” to plaintiff, who agreed “ to take ” from defendant, “all that "certain right or privilege to maintain three stands in Steeplechase Park, Coney Island, N. Y., for the sale of all kinds of candies, peanuts and popcorn, the said right being the exclusive right for said business within Steeplechase Park from the Beach to Surf avenue; also, in addition, the store-room under the Steeplechase tracks, and one of said stands to be located in the main pavilion of Steeplechase Park, as already designated, and its size not to exceed 8x8 feet.” The period of such “ letting ” was to be from the opening day of said park to the 1st day of October, 1907, at a “rent” of $1,200, payable, ,$600 on the signing of the instrument, $300 on June 15, 1907, and $300 on July 5, 1907. Plaintiff took possession and made the payments above mentioned. The last of such payments was made on July 5, 1907, which was in full for the whole season. Thereafter, and on July 28, 1907, the entire park was destroyed by fire, and plaintiff here sues to recover that proportion of the said “ rent ” of $1,200 which would cover the period subsequent to July 28, 1907, and between that date and October 1, 1907, when the lease by its terms was to terminate. The only question presented is this: Was the instrument a lease or a license? If it was a lease, the rent due and owing and paid on July fifth cannot be recovered, notwithstanding the destruction by fire on July 28, 1907.

The test of the distinction between a lease and a license depends, substantially, upon the question whether or not the contract or authority granting the right to enter upon the land of another confers upon the person so entering an interest in the land so as to affect the other in the exclusive use of his land. While it is true that the mere use of the words “ lease ” and let ” in the contract does not necessarily create a lease, as distinguished from a license, nevertheless, the instrument in suit must be regarded as a lease, since it gave plaintiff a right to the possession and use not only of a certain specified space of ground for his stands, but also of the store-room under the tracks, which right of use and possession certainly affected defendant’s right to the exclusive use of its land.

We are of opinion, therefore, that the learned court below fell into error in holding that the instrument was a license and not a lease.

Seabury and Lehman, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.  