
    Walter R. USHER, respondent, v. James J. CALLANAN, appellant.
    (Supreme Court, Appellate Division, Second Department.
    March 10, 1916.)
   Decision modified in the following respects, viz.: (a) By striking from finding twenty-second the last paragraph thereof; (.0) by striking from finding twenty-fourth the last paragraph thereof; (c) by striking out and reversing entirely the twenty-sixth finding; (d) by striking out of the! twenty-eighth finding the following: “Which, by the terms of said agreement, he has no right to conduct or allow to be conducted there;” (e) by striking out the last paragraph of finding thirty-fifth; (f) by striking out of the first conclusion the following: “And to the effect that during said period of time the defendant, Ms agents, servants, and employes, have no right to deal in, or sell or exhibit, or expose for sale, groceries or commodities usually sold by grocers;” (g) by striking out from subdivision III of conclusion third the words “and fish”; and (h) by striking out and reversing entirely conclusion fourth. The judgment appealed from is modified in the following particulars, viz.: (a) By striking therefrom the following paragraph: “From selling groceries during the term of plaintiff’s lease to any and all customers who had formerly dealt with defendant in said grocery business at 41 and 43 Vesey street, and to all customers whose names appear on book's kept by defendant in the business at 41 and 43 Vesey street, up to November 9, 1914, and defendant is hereby enjoined from preventing plaintiff from having access to said books to obtain names of such customers for one year from November 9, 1914;” and (b) by striking therefrom the following portion, viz.: “That by said agreement dated September 29, 1914, offered in evidence on the trial and marked Plaintiff’s Exhibit 1, made by and between the plaintiff and defendant, and from the intent of the parties as disclosed by the evidence on the trial of this action, there is an implied covenant by and between the parties to the effect that during the term of the lease dated November 9, 1914, offered in evidence on the trial and marked Plaintiff’s Exhibit 2, that defendant must not deal in any commodity in the part of the store premises not rented to plaintiff except fresh meats, wines, liquors, cigars, candies and fresh fruits;” and said judgment, as so modified, and the order appealed from, are affirmed, without costs. Jenks, P. J., and Thomas, Stapleton, Mills, and Putnam, JJ., concur. Settle order before Mills, J.  