
    The Willis Cab and Auto Company, Plaintiff, v. The Abbaye and The United States Motor Cab Company, Defendants.
    (Supreme Court, New York Special Term,
    May, 1910.)
    Abutting owners — Rights and liabilities in general — Extent of abutting owners’ rights in street.
    Contracts — Performance of contracts — Waiver of breach — What constitutes waiver.
    Injunction — Who and what may be enjoined — Interference with property rights by persons — Interference with possession and use of premises — Acts of licensor or licensee.
    Licenses — Power to grant.
    Where the proprietor of a café agrees with a motor cab company that it shall have the exclusive right to maintain a general carriage service station in the street in front of its premises in the city of New York for one year, and upon its consent a license is issued by the municipal authorities to the cab company accordingly and thereafter, during the period of the agreement, without any substantial failure to perform on the part of the cab company, the proprietor of the café attempts to revoke the privilege and have the municipal license revoked and grant the privilege to another, the cab company may maintain an action to enjoin the licensor and its subsequent licensee from interfering with its rights under the agreement, and in such an action may have a preliminary injunction.
    By the request of the proprietor of the café to the municipal authorities to issue a license to the cab company, it waived any previous failure on the part of the company to perform its agreement.
    ■Motion for an injunction.
    Lexow, Mackellar & Wells, for plaintiff.
    Leonard Bronner, for defendant The Abbaye.
    Arthur W. Opp, for United States Motor Cab Company.
   Erlanger, J.

On December 27, 190-9, the plaintiff by contract with the defendant The Abbaye, which carries on the business of a restaurant and café, secured the sole and exclusive license for one year from January 1, 1910, to maintain and conduct a general carriage service station in front of its, The Abbaye’s, premises. It undertook to pay to The Abbaye ten per cent, of all fares collected from guests of the café, guaranteeing a minimum payment of $1,500 for the year. Subsequently, with The Abbaye’s consent, the bureau of licenses of the city issued licenses to the plaintiff to keep and use hack stands in front of The Abbaye’s premises. About April 27 or 28, 1910, The Abbaye notified the bureau of licenses that it had revoked the privilege granted plaintiff and had given the privilege to the United States Motor Cab Company, a rival concern. This motion is to enjoin both defendants from interfering with plaintiff’s exclusive license to the use of said special hack stands. It would seem that an abutting property owner cannot derive revenue by undertaking to barter away an exclusive use to the public highway and thereby exclude all others from the enjoyment of a privilege which belongs to the general public, even though it is claimed that the right exists through an ordinance. McMillan v. Klaw & Erlanger C. Co., 107 App. Div. 407; Ackerman v. True, 175 N. Y. 353; City of New York v. Rice, 198 id. 124. I feel constrained, however, to follow Odell v. Bretney, 62 App. Div. 595. Within the rule declared by that authority the plaintiff has made out a case for an injunction pendente lite. In opposition to the motion the defendant Abbaye claims that shortly after the contract was executed it became apparent that the plaintiff was financially embarrassed and could not and did not render proper or adequate service; but, notwithstanding this claim, The Abbaye on the 11th day of February, 1910, notified the chief of bureau of licenses to issue to the' plaintiff a permit for the exclusive placing of its vehicles in front of The Abbaye’s premises. This was clearly a waiver of -any claimed failure on plaintiff’s part to adequately perform its contract prior to said date. The defendants have not satisfied me that following February 11, 1910, there has not been a substantial performance of the contract by the plaintiff. The objection that the plaintiff’s remedy is at law for damages and not in equity for a specific performance through injunctive relief is disposed of by the cases of Siegel-Cooper Co. v. Butterick Pub. Co., 30 App. Div. 564; affd., 157 N. Y. 60; Waldorf-Astoria S. Co. v. Salomon, 109 App. Div. 65; affd., 184 N. Y. 584.

Motion granted.  