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(113 A.)

PATTISON, J. The appellants in this case of that court upon the demurrer. It is said sold to Charles W. Schaffer a lot of ground in 28 Cyc. 1200: situated in the city of Baltimore, at and for the sum of $20,000. By the contract of sale, dated the 19th day of January, 1920, the vendors were to convey unto the vendee, his heirs and assigns, upon his complying with the terms of sale, the said lot of ground "in fee simple by good and merchantable title." Thereafter Schaffer transferred and assigned all his rights under said contract to Charles J. Dobler, the appellee.

On May 17, 1915, long prior to the execution of the aforegoing contract, Ordinance No. 618 was passed by the mayor and city council of Baltimore, and "approved May 17, 1915," for the condemnation and opening of the Key highway.

On or about January 3, 1916 "the commissioners for opening streets," acting under said ordinance and in accordance with the established procedure in such cases, filed their "final and corrected statement of damages, expenses and benefits," in the proceedings for the condemnation and opening of said street or highway; in which statement they entered against said lot of ground, then owned and held by the appellants, or those from whom they now claim, an assessment of $1,185, as the benefits that the said lot of ground would receive from the opening of said highway.

The owners of said lot of ground, being dissatisfied with the assessment of benefits charged against it, appealed from the action of the commissioners to the Baltimore city court, where the appeal was pending at the time of said sale to Schaffer, and where it is still pending.

The bill filed by the appellee in this case, for the specific performance of said contract of sale, alleges that the appellants, when called upon by the appellee, refused to convey to him the lot of ground bought by his assignor from them unless the appellee paid to them the whole amount of the purchase money therefor, $20,000, without any abatement or reduction on account of said unpaid benefit assessment, which the appellants contend was not, at the time of the sale to Schaffer, or now, a lien on said lot of ground.

As stated by the appellants in their brief, the only question in this case is whether, at the time of the execution of the contract of sale of the lot of ground to Schaffer, the said benefit assessment for the opening of the Key highway, under said ordinance, was a lien upon the property sold, or an incumbrance thereon, by reason of which the appellants are unable to convey the said lot of ground to the appellee, in "fee simple by a good and merchantable title," while the said assessment is outstanding, undisposed of, or unpaid. This question was presented to the court below by a demurrer to the appellee's bill, which was overruled, and the question is now before this court, on appeal from the ruling

"The lien of an assessment must exist and attach according to the terms and conditions of the statute creating it, such statutes usually fixing the time at which it shall attach. Eagle Manufacturing Co. v. Davenport, 101 Iowa, 493, 70 N. W. 707, 38 L. R. A. 480. As a general rule, when no time is expressly fixed by the statute for the lien to take effect, it accrues Lyon v. upon the assessment of the tax." Alley, 130 U. S. 177, 9 Sup. Ct. 480, 32 L. Ed. 899, and other cases found in note to Cyc.

In the cases cited by the appellants, chiefly New York cases, it was held that the lien attached at a later time, but in those cases the statute expressly fixed such subsequent time for the lien to attach.

By the statute controlling in this case, the commissioners for opening streets were made the "second sub. department of review and assessment," and, when an ordinance is passed for the opening of a street or highway, they are required to give notice of their first meeting to be held for the execution of the ordinance. At such meeting, in addition to ascertaining the amount of damages that may be caused the owner of any rights or interests in any ground or improvement by the opening of said street, the commissioners"shall proceed to assess all the ground and improvements, the owners of which, as such, the said Commissioners shall decide and deem to be directly benefited by accomplishing the object authorized in the ordinance." Section 175 of the City Charter.

Section 177 provides that

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have completed the valuation of damages to be "as soon as the commissioners aforesaid shall ascertained by them they shall cause a statement thereof to be made out for the inspection of all persons desiring information of its contents, and such statement, together with an explanatory map or maps, shall contain a description of each separate lot or parcel of ground deemed to have sustained damage,

and the amount of damage as valued by the commissioners: * * * and in like manner a description of each parcel of ground deemed by the commissioners to be benefited, the name or names of such person or persons as may be supposed to have any interest or thereon for benefits; and the said commissioninterests therein, and the amount assessed ers shall cause a notice to be published stating the extent of the ground covered by the assessment, and that such statement and maps are ready for the inspection of all persons interested therein and that the commissioners will meet at their office on a day to be named in said notice * *for the purpose of reviewing any of the matters contained in said interested shall make objection; and the comstatement to which any person claiming to be missioners shall meet at the time and place so appointed. and shall hear and consider all such representations or testimony on oath or affirmation, in relation to any matter in said statement which shall be offered to them

*

*

on behalf of any person claiming to be inter- [ property deemed by the commissioners to be ested therein, and the said commissioners shall benefited by the opening of the highway, it make all such corrections and alterations in the does not state or disclose the time at which valuation, assessments and estimates, * the lien attaches, and that under the statute as in their judgment shall appear to them the lien was not intended to attach until the to be just and proper; * * ⚫ and after closing such review the commissioners amounts of each and all of the assessments shall make all such corrections in their statewere definitely ascertained, and fixed beyond ment change or modification, by appeal or otherwise, and this they claim could not be accom

as they shall deem proper, and cause such statement as corrected to be recorded in their book of proceedings, and certified un-plished until it was definitely known that the der the hands and seals of said commissioners and their clerk, and notify all persons interested * that the said assessments have been completed, and that the parties affected thereby are entitled to appeal therefrom * to the Baltimore city court."

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aggregate amount of assessments was not in excess of the damages awarded and the expenses of such proceedings, for, if so, under the decisions of this Court (Maryland Trust Co. v. Mayor and City Council of Baltimore, 125 Md. 40, 93 Atl. 454; and the Mayor & City Council of Baltimore v. Maryland Trust Co., 135 Md. 36, 107 Atl. 574), they would have to be proportionately reduced to the amount of such damages and expenses, and that it was at such time, and not until then, that the assessment became a lien, and so remained until paid by the city. We, however, do not agree with the appellant in this contention. The assessments alluded to in the statute are those "assessed by the commissioners,"

Section 179 provides that an appeal from the action of the commissioners to the Baltimore city court may be taken by the party appealing, upon his filing his petition asking the court to review such action of the commissioners, and, upon the filing of his petition, the court shall appoint a day for hearing said appeal, "which shall not be less than five or more than thirty days after expiration of the thirty days limited for taking appeals." It is then further provided by said section and not those fixed or established upon apof the charter, that "the court shall direct the clerk of the said court to issue a subpœna duces tecum to the clerk of the commissioners for opening streets, requiring him to produce and deliver to the said court the records of the proceedings of the said commissioners in the case," and the party appealing is by said section "secured in the right of a jury trial."

The jury in such case is to

* to ascertain and

“try any question of facts, and if necessary to
view any property
decide on the amount of damages or benefits,
under the direction of the court; and the said
court shall not reject or set aside the record
of the proceedings of the said commissioners for
any defect or omission in either form or sub-
stance, but shall amend or supply all such de-
fects and omissions and increase or reduce the
amount of damages and benefits assessed,
as the said court shall deem just and

proper, and shall cause the proceedings and
decisions on said returns and appeals to be
entered in the book containing the record of
the proceedings of the commissioners certified
by the clerk, under the seal of the court, and
the book to be transmitted to said commission-
ers, which shall be final and conclusive in every
respect, unless an appeal be taken to the Court
of Appeals."

Section 185 provides that

peal from the action of the commissioners, or those subsequently established when it is found that the aggregate assessments exceed the damages awarded, and expenses, and as to the assessments so made by the commissioners the statute declares that "they shall be and continue liens" until paid to the city.

[1] It is true that the statute does not, in express terms, state that the sums of money so assessed shall be and continue liens from

any stated time, but, by a reasonable interpretation of the language of the statute, the lien attaches at the time when under section 177 of the charter the review of the commissioners is closed and a corrected statement of the valuations and assessments is recorded in their book of proceedings, and certified under the hands and seals of said commissioners and their clerk, and the parties interested notified that "the assessments have been completed." But, should we be wrong in our interpretation of the statute (that it expressly discloses the time when the lien attaches), the lien, nevertheless, under the above-cited authorities, attaches at the time stated.

[2] It cannot, we think, be successfully contended that, in the absence of an appeal from the action of the commissioners, the lien would not attach at the time of the completion of the assessment made by them, and the mere taking of an appeal would not defeat the attaching of a lien at such time; but pending such appeal the sums assessed by the commissioners would continue as liens, subject to modification or defeat by the judgment of the court to which the appeal was taken; and therefore, as the appeal in this It is contended by the appellants that, al-case is still pending, the sum assessed by the though section 185 provides that the assess- commissioners against said lot of ground con

"all sums of money assessed by the commissioners aforesaid, upon property deemed by them to be benefited, shall be and continue liens on each several pieces of property so assessed, to the amount of its particular assessments, until the same shall be paid to the city."

(113 A.)

The order overruling the demurrer will be affirmed, and the case remanded.

BRISCOE, J. The two appeals, in this case, are from the same decree, they present

Order affirmed, and case remanded, with practically the same questions, and will be costs to the appellee.

ADKINS, J., dissenting.

(137 Md. 665)

BELVEDERE HOTEL CO. v. WILLIAMS. ZENTGRAFF v. SAME.

(Nos. 81, 82.)

disposed of in one opinion.

The plaintiff below, and the appellee on this record, is a barber, and at present conducts the barber shop of the Belvedere Hotel, Baltimore, and other barber shops elsewhere including the one of the Southern Hotel, Baltimore, and the barber shop at the Traymore Hotel, at Atlantic City, N. J.

The Belvedere Hotel Company, one of the defendants below and appellant here, is a corporation of the state of Delaware, and is owner and operator of the Hotel Belvedere, situate at the southeast corner of Charles and Chase streets, Baltimore City.

(Court of Appeals of Maryland. Feb. 2, 1921.) 1. Landlord and tenant 130(2)-Barber shop "concession" in lessor's hotel gave lessee exclusive right to operate hotel barber shop. Hotel company's lease of barber shop and manicuring "concession" in its hotel gave lessee the exclusive right to operate a barber shop and manicuring establishment in the hotel (cit-in February, 1920. He had been employed ing Words and Phrases, Concession).

2. Landlord and tenant 130(2)-Room used for hotel purposes in building adjoining main hotel building held part of "hotel."

The room in a building adjoining the principal hotel building used for hotel purposes with direct communication from hotel lobby

held a part of the "hotel," within the lease giving the lessee exclusive right to operate barber shop in the "hotel."

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Hotel.] 3. Injunction 121 Lessee's petition to restrain operation of second barber shop in hotel properly filed in action in which injunction to restrain interference with his lease had previously been granted.

Where hotel company, having been enjoined from interfering with lease of barber to whom it had given the exclusive right to operate barber shop in the hotel, leased a room in the hotel to another barber, a petition by the holder of the prior lease to restrain the hotel company from permitting another barber shop to be maintained in the hotel, and to restrain the other barber from operating his shop in the hotel, was properly filed in the action in which the prior injunction was granted, instead of by original bill in separate proceeding.

Appeals from Circuit Court of Baltimore City; Henry Duffy, Judge.

Action by John Williams against the Belve dere Hotel Company and William Zentgraff. Decree for plaintiff, and defendants separately appeal. Affirmed on both appeals.

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ.

Clarence A. Tucker, of Baltimore (Knapp, Ulman & Tucker, of Baltimore, on the brief), for appellants.

Rowland K. Adams and Vernon Cook, both of Baltimore, for appellee.

William Zentgraff, the other defendant below, and also appellant here, is a barber and was employed by the appellee for about two years in the Hotel Belvedere barber shop, but had been discharged by him (appellee)

in the shop for some years prior to the time when the appellee began to operate the barber shop in the Belvedere Hotel.

It appears from a lease set out in the record that what is called and known as the Hotel Belvedere barber shop, and the manicuring concession in the Belvedere hotel, were rented to the appellee, John Williams, by the Belvedere Hotel Company, by contract dated May 10, 1920, for a term of two years beginning May 20, 1918, at the annual rental of $2,000. The terms and stipulations of the lease are stated therein, and are in part as

follows:

"The party of the first part agrees to lease, to the party of the second part, the barber shop and manicuring concession in its hotel for a term of two years, beginning May 20, 1918, at an annual rental of $2,000, to be paid in monthly installments of $166.66, due on or by the tenth of each month for the preceding month's rent."

It is further provided:

"At the expiration of the two years, if the party of the second part shows that there has been no material increase in the receipts of his business he is to have an additional year at the same rental. In the event that there is a substantial increase, to the amount worthy of paying a small additional rental, then the parties of the first and second parts can agree as to the said increase."

Subsequently, a dispute arose between the parties to the lease as to the date when the lease terminated, and this resulted in a notice to the appellee, from the appellant hotel company, that the lease expired on the 20th of May, 1920, and that the leased premises should be vacated and surrendered on that date.

The contention on the part of the appellee was that he had a right, under the terms of

the lease, to continue it for an additional year, or until May 20, 1921.

On May 17, 1920, the plaintiff filed a bill in the circuit court for Baltimore City against the Belvedere Hotel Company, praying that the defendant be restrained by injunction from ejecting the plaintiff by force or otherwise or from interfering with the plaintiff's enjoyment of his leasehold estate or from interfering with the business conducted by him on the premises.

The bill, among other things, charged: That the defendant "openly threatened that if the plaintiff does not vacate said premises on or before the 20th day of May that the defendant will immediately thereafter forcibly eject the plaintiff from the premises occupied by him under the lease, to wit, the barber shop at the Hotel Belvedere, and the defendant has threatened to use all such force as may be necessary for this purpose, and has threatened to enter the barber shop at night while the plaintiff and his employees are away therefrom, and to cut off the water and electric current which has heretofore been supplied the barber shop under the terms of this lease, and which are absolutely essential for the operation thereof." "That the acts threatened on the part of the defendant would break up and destroy the plaintiff's business and destroy the use and enjoyment by the plaintiff of the leasehold interest to which he is entitled under the terms of the lease, and the plaintiff is without adequate remedy except in this honorable court."

The terms and stipulation of the lease and renting are in part as follows:

"Witnesseth, that the said landlord hereby rents to the said tenant the front room, on the first floor of the building known as No. 1023 North Charles street, in Baltimore City, for the term of one month, beginning on the 16th day of July, 1920, and ending on the 15th day of August, 1920, at sixty dollars ($60.00), a month, payable in advance."

The tenant agreed and covenanted not to use the premises, or permit its use for purposes other than those of a barber shop and would not at any time assign the agreement or sublet the property or any portion thereof without the consent in writing of the landlord or its representatives.

furnish the tenant during the term, for the The landlord on its part covenanted to use of the leased premises, light, heat, and cold and hot water.

And it was further agreed that the agreement with all its provisions and covenants shall continue in force from month to month after the expiration of the term mentioned, provided, however, that either of the parties Could terminate the same at the end of the term by giving at least 30 days' previous notice thereof in writing to the other.

It appears that shortly after the Zentgraff barber shop was opened, the appellee filed a petition, supplemental to the original proceedings and in aid of the relief, which had been granted on the original bill, for an

This case was heard upon bill, answer, testimony, and a motion to dissolve a pre-injunction to restrain the Belvedere Hotel liminary injunction which had been previously granted, and the court below on the 30th of June, 1920, overruled the motion to dissolve and decreed:

"That the preliminary injunction heretofore granted herein be and the same is hereby made perpetual until May 20, 1921, the date on which the plaintiff's lease mentioned in these proceedings will expire, provided the plaintiff during the period shall comply with the provisions of the lease."

Company from maintaining or permitting to be maintained, in the hotel and on the premises of Hotel Belvedere, any barber shop other than that of the one conducted by the appellee, or from in any manner attempting to injure the business of the appellee, in violation of his rights under the original agreement of lease between the Belvedere Hotel Company and the appellee.

Subsequently, the appellant Zentgraff was made an additional party defendant to the There was no appeal from this decree, and cause, and an injunction was also asked restraining and enjoining him from renewing it is admitted that at the hearing of the case or continuing the lease dated on the 10th of testimony was offered by both the plaintiff July, 1920, of the premises therein mentionand defendant in support of the contentions ed for the purpose of conducting a barber made in their respective pleadings, and that shop and from continuing to conduct a barthe court after full hearing passed the de- ber shop on the premises mentioned in the cree, and held that the tenancy of the appel-lease and in the Hotel Belvedere. lee of the Belvedere Hotel barber shop con- The case was heard upon the pleadings set tinued under his lease to May 20, 1921. The out in the record, and upon testimony taken action of the court below in passing this decree is not, therefore, before us for review on this appeal.

Shortly after the decree of the 30th of June, 1920, the appellant William Zentgraff, by lease dated the 10th day of July, 1920, rented from the Belvedere Hotel Company the front room on the first floor of the building known as No. 1023 North Charles street, in Baltimore City, to be used for a barber

in open court.

After the counsel for the respective parties were heard, the court below passed the following decree:

The above cause having come on for hearing on the 17th day of August, 1920, on the petition of the plaintiff, filed on the 17th day of July, 1920, the answer of the defendant thereto, and the motion of the defendant to dissolve the preliminary injunction granted thereon, tes

(113 A.)

The witness Letton, the manager of the front room of the first floor in the Zentgraff or second lease, testified that he fitted up the room as a barber shop. The balance of the building remains as it was, except the room used as a barber shop, which had to have hot and cold water. We had a lavatory put in, and had our house plumber connect it, so as he would have hot and cold water in the barber shop; that he had a solid partition built directly in front of the main entrance to the building, which led up the stairway in the hall around the other floor; that partition was built up high so as to prevent any one from going into our part of the building from the street and from any one entering that

fendant was taken in open court, and counsel, premises known as No. 1023 North Charles for the respective parties were heard, and the street had been owned by the hotel for sevcourt being of the opinion that the maintenance eral years prior to September, 1917, when he of a barber shop on the premises demised by obtained an interest in the property, and the lease dated July 10, 1920, mentioned in par- there was no barber shop in it when he went agraph 3 of said petition and offered in evidence, constituted a violation on the part of the to the hotel; that the building was used for defendant of the plaintiff's rights, but that the the storage of hotel furniture, but had been other party to said lease, William Zentgraff, used by the former management of the hotel not having theretofore been a party to his for guests of the hotel. cause, no injunction ought then to be granted herein affecting the rights of said William Zent-hotel, and who negotiated the lease for the graff under said lease, or requiring the termination of said lease, by notice or otherwise, without making said William Zentgraff a party herein and affording him an opportunity to show any rights he might have, superior to the rights of the defendant, as against the plaintiff herein with respect to said lease. Thereupon the plaintiff, on the 18th day of August, 1920, filed his petition herein, upon which petition the court on the same day passed an order making the said William Zentgraff an additional party defendant herein, and directing that a writ of injunction issue against both defendants, enjoining them as is provided in said order, unless cause to the contrary be shown by the defendant William Zentgraff; and this cause having further come on for hearing on said last-mentioned petition, said order to show cause and the alleged cause shown by the de-way from the rear, and then had a bolt put fendant William Zentgraff, in response to said order, counsel for the plaintiff and for the defendant William Zentgraff were heard, and the court, being of the opinion that the cause shown by the defendant William Zentgraff is insufficient, it is therefore, this 20th day of August, 1920, adjudged, ordered, and decreed by the circuit court of Baltimore City that a writ of injunction issue forthwith, enjoining and restraining both defendants, their agents and employees, until May 20, 1921, or the earlier termination of the plaintiff's lease, from continuing to conduct a barber shop on the aforesaid premises, costs of this proceeding accruing since filing of petition of July 17, 1920, to be paid by both defendants.

From this decree, both defendants have appealed.

The facts of the case, it will be observed, are stated in the pleadings and are fully set out in the record.

The chief controversy in the case arises out of the construction and effect to be given the clause in the first lease, as follows:

"The party of the first part agrees to lease to the party of the second part, the barber shop and manicuring concession in its hotel for a term of two years, beginning May 20, 1918, at an annual rental of $2,000.00 to be paid in monthly installments of $166.66%, due on or by the tenth of each month for the preceding

months' rent."

It appears from the testimony in the record that No. 1023 North Charles street was owned by the hotel company, used by it for hotel purposes, and was used as a part of the hotel, at the date of the lease to the appellee.

The witness Consolvo, the president of the hotel company, testified in part that the

on each side to the rear entrance door to the shop leading from the back part that was used for storage.

There was other testimony to the effect that the main hotel building is located at the southeast corner of Charles and Chase streets, and that the property No. 1023 North Charles street adjoins it on the south; that there is direct communication between the main building of the hotel and No. 1023 North Charles street, through a doorway opening on what is called the "summer garden," and after the Zentgraff barber shop was opened

there was a direct communication between the lobby of the hotel and the barber shop.

[1, 2] The proper conclusion, we think, from an examination of the testimony disclosed by the record, is that No. 1023 North Charles street was an adjunct and a part of the Hotel Belvedere, and under the lease of May 10, 1920, the appellee had, during the continuance of this lease, the sole and exclusive right to operate a barber shop and a manicuring establishment in the Hotel Belvedere.

The plain language of the lease is that the party of the first part agrees to lease to the party of the second part the barber shop and manicuring concession in its hotel for a term of two years.

The use of the word "concession" in the lease, we think, shows an intent to convey more than a part of the premises. As stated by the appellee in his brief, the concession granted by the lease was the concession "in its hotel," and was clearly intended to be the concession of the privilege for the entire hotel.

In volume 2, Words and Phrases, 1386, it

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