Land Associates Corp. v. Grand Union Stores, Inc. ( 1937 )

Plaintiff has appealed from an order denying its motion for judgment on the pleadings. Plaintiff is the owner of premises known as 139 Glen street, in the city of Glens Falls. Defendant, Grand Union Stores, Inc., had a lease of such premises and also a lease of the premises known as 141 Glen street, which were not owned by plaintiff. Each lease provided that the premises were to be used as a store for the sale and display of defendant’s merchandise. Each lease provided for a basic minimum rental and also made provision for a percentage rental to be fixed at one-eighth per cent of the gross sales made at either store. The owner of a mortgage on premises known as 141 Glen street brought an action to foreclose the same and obtained a final judgment granting such relief. At the foreclosure sale the mortgagee bid in the premises. As a result defendant was required to vacate. Plaintiff then brought this action to have defendant ejected from the premises of which plaintiff is the owner and moved for judgment on the pleadings. The Special Term denied the motion on the ground that the issues raised require a trial. Order unanimously affirmed, with ten dollars costs and disbursements. Present —■ Hill, P. J., McNamee, Crapser, Bliss and Heffernan, JJ.