¶1(concurring). In addition to the considerations set out in the opinion of Mr. Justice Seabury, I think it may be pointed out profitably that it cannot be maintained that the lessee could be held to his bare covenant to pay rent, notwithstanding the alleged illegality of the purpose of the use for which the premises had been leased originally.
¶2The lease provides that the premises are “ to be used and occupied for the purposes of a place of amusement for the exhibition of moving pictures and for no other purposes whatsoever.”
¶3In the case of Chautauqua Assembly v. Alling, 46 Hun, 582, 586, the court says that words like “ only ” or “ solely ” in a lease of this nature are .words of restriction; and intimates that such words would be equivalent to an express covenant of the lessee not to'put the premises to any other use.
¶4In the case of Weil v. Abrahams, 53 App. Div. 313, tbe lease read “ to be used as an oilcloth store, and dry goods store,” there being, however, no words of restriction. An injunction issued against use for holding auctions, on the theory of an implied covenant not to use for other purposes than those expressed. See also Gillian v. Horton, 33 How. Pr. 373.
¶5When, therefore, by appropriate legislation, the use of the premises in the case át bar for the only purpose for which they had been leased, and the purpose for which the lessee agreed to use them exclusively, was made illegal, a situation *610was created analogous to the happening of a condition subsequent, whereby, within the intention of both parties when the lease was made, it may fairly be said that the entire instrument was to be defeated.
¶6I concur in the reversal of the judgment.
¶7Judgment reversed.