#### Bernard Lynch, Respondent, *v.*Robert P. Murphy Hotel Company and Others, Defendants, Impleaded with New York Taxicab Company, Appellant.

First Department,

March 5, 1909.

Contract — cab license — injunction — when remedy at law adequate.

An agreement by a hotel company purporting to lease the privilege of carriage service for the hotel for a specified sum is not a lease, but a license.

Where such license was *not*exclusive and it is not shown that irreparable damage will ensue from a breach thereof, and. the license has been surrendered by one of the licensees, the plaintiS’s partner, his suit for an injunction restraining the hotel from granting a like license to other parties does not lie, for if there was any breach of the agreement the remedy at law is adequate.

Appeal by the defendant, the Hew York Taxicab Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of thé clerk of the county of Hew York on the 9th day of Hovember, 1908.

*William, F. Goldbeck*of counsel *[Colby*& Goldbeck, attorneys], for the appellant.

*James*Kearney, for the respondent.

Clarke,J.:

Appeal from an order granting an in junction *pendente lite,*providing that the defendant hotel company and the Hew York Taxicab Company be enjoined from directly *or*indirectly exercising the privilege of supplying carriage, taxicab and motor cab service at the Hotel Albany,- and from using the telephone and telephone booth installed by the taxicab company in said Hotel Albany in-soliciting orders for supplying carriages or taxicabs or motor cabs, and from directly or indirectly interfering with the plaintiff and the Union Taxicab Auto Service Company in the exercise and enjoyment of said carriage, taxicab and motor cab service privilege at said hotel.

On the 10th of March, 1908, the hotel company entered into the following contract with Pimot and Lynch: *“*The party of the first part hereby agrees to lease of privilege of carriage services and taximeter cab services for the sum of ■ * * * $1,500 per year or *692* * * $125 per month to the parties of the second part for a term of not less than two years, and the party of the first part, is to have the privilege for stand for touring cars for race track, etc. The parties of the second part hereby agree to f urnish the carriages, cabs, and horses for the Hotel Albany * * * and pay therefor the sum of * * * $125 per month.”

On the 23d of May, 1908, Lynch and Pimot entered into an agreement with the Union Taxicab Auto Service Company as follows: “ The party of the first part hereby agrees to sublease the privilege of carriage and auto taxicab services for 10$ commission of all calls obtained at the Albany Hotel stand for the term of one (1) year from date. * * * The party of the second part hereby agrees, to furnish the taximeter cabs for the Hotel'Albany, * * * and also agrees to permit the party of the first part to examine the drivers’ sheets on demand.”

Subsequently Pimot, purporting to act for his partnership, for $400 signpd a release of said contract with the hotel company. The hotel company notified the license bureau that it had revoked its consent to the stand in front of the hotel and made an arrangement with the Hew York Taxicab Company. This action is brought in equity for an injunction against interference with the rights alleged to be existing under said two papers, and the learned court has granted the injunction upon the ground that said papers constitute a lease, and in accordance with the line of authorities which permit injunctive action in support of a lease.

The agreement between Pimot and Lynch and the hotel company is not a lease. As a license or privilege it is not exclusive. It is not shown that irreparable damage will ensue upon a. breach thereof.- If the contract has been breached a legal remedy is afforded. It is difficult to conceive of a lease by a private individual of a portion of a public street. In *Hess*v. *Roberts*(124 App. Div. 328) the paper in consideration provided that plaintiff should have the exclusive privilege of the public stenographer’s office situated in the Murray Hill Hotel. We said : “ This instrument is called a lease, although it is nothing of the kind; it is a mere agreement to allow a stenographer and typewriter to carry on business .in a hotel.” Further, “ But assuming that the defendant had no right to revoke the agreement and prevent plaintiff from *693continuing this business at the hotel, she had a complete remedy at law and an appeal to a court of equity was unnecessary and unjustifiable. * * ***The cases which have restrained a landlord from interfering with a tenant’s possession of real property have no application, for here there was no property leased to the plaintiff, but an agreement to allow her to carry on the business of stenography and typewriting in the hotel.”

That was a stronger case for plaintiff than the one at bar, but this court vacated the injunction. I find no warrant for the order appealed from, and especially so far as affects the appellant, the Hew York Taxicab Company, which was not a party, to any of the agreements sued on.

The order appealed from should be reversed and the injunction vacated, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.