
    George W. Olin, Plaintiff, v. George H. Warner et al., Defendants.
    County Court, Jefferson County,
    June 9, 1958.
    
      Francis P. Burns for plaintiff.
    
      Richard F. Schwemmann for defendants.
   Milton A. Wilts®, J.

It is determined that the petition of the owner of the premises in this proceeding is dismissed.

It has been so decided upon testimony adduced by the parties, and upon all of the papers filed herein, wherein it appears as a factual matter that the clause in a certain lease that has been admitted in evidence upon a trial of the issues herein and which cover the premises in question, namely, a certain dock and adjoining premises that are adjacent to other properties purchased by the occupants from the owner upon certain terms and conditions contained in the aforesaid lease, are the alleged basis for the removal of the aforesaid occupants; that the only terms and conditions upon which the owner relies are certain statements relating to the furnishing of an insurance policy for indemnity to cover any person suffering injuries upon the leased" premises; that a violation, if any, of that particular clause, is one that would not afford the owner the relief sought. His action, if any, should be predicated upon an action for damages.

There was no showing that anyone was damaged and there was testimony to the effect that a public liability policy had been carried by the occupants, except for a period of approximately three months in the winter of 1957-1958 and that thereafter, the occupants had procured another public liability policy and had asked the owner to join in execution of same, and had tendered to the insurance company the policy, with their application and a premium, but that the owner would not join in same even though he was relieved from all financial responsibility for the premium on the policy by the action of the occupants.

It is suggested, although this statement may not be considered as part of the decision and the accompanying order, that the owner, if he wishes to have the terms of the aforesaid lease literally complied with, proceed to comply with the necessary requirements of any policy of insurance that have been tendered by the occupants, in order to effectually meet terms of the aforesaid lease. It is further the feeling of this court, although no determination is allowed in that respect hereunder, that the owner’s failure to make it possible for the occupants to carry out all of the terms and conditions of the lease upon which the present proceeding is determined, makes a situation in which the occupants are stymied ” by the failure of the owner to perform the conditions that he should perform.

To reiterate, upon all of the grounds mentioned, the petition of the owner is dismissed upon all of the available testimony and papers relating to this proceeding, with the right of the owner or occupants to institute whatever other proceeding is deemed applicable under the law.

An order to this effect may be entered.  