Swartz v. War Memorial Commission of Rochester
Supreme Court of New York, Appellate Division
267 N.Y.S.2d 253 (1966)
Sam Swartz (plaintiff) held an exclusive concession contract with the War Memorial Commission of Rochester (defendant) to sell concessions at the War Memorial Building; the contract provided that if the Commission's then-existing ban on alcohol sales were lifted, Swartz's exclusive rights would extend to alcohol as well, and that Swartz would hold all licenses necessary for his operations. When the Commission lifted the alcohol ban in November 1965, Swartz refused to apply for an alcohol license, and after the Commission warned that his contract would be terminated unless he applied within 30 days, Swartz sought a declaratory judgment that he retained exclusive concession rights despite declining to sell alcohol; the trial court dismissed his claim, and he appealed.
Whether, where an exclusive concession contract provides that the exclusivity arrangement will extend to alcohol sales once an existing prohibition is lifted, the lifting of that prohibition obligates the seller to make an effort to sell alcohol.