197 A.D. 776 | N.Y. App. Div. | 1921
This appeal is from an order of the Special Term denying plaintiff’s motion for a mandatory injunction pendente lite summarily removing the defendants Morris Hindin and Charles Hindin from the real property of the plaintiff.
The action is brought to obtain a permanent injunction restraining the defendants Cohn from permitting the defendants Hindin to continue to occupy certain premises owned by the plaintiff and leased to the defendants Cohn, and restraining the said defendants Cohn from in any manner subletting said leased premises or any part thereof without the written consent of the plaintiff first had and obtained, and restraining said defendants from in anywise occupying said premises, except in accordance with the terms and conditions of said lease, and restraining the said defendants Hindin from occupying or continuing to occupy said premises.
The facts upon which plaintiff bases his cause of action and upon which he asks the equitable intervention of the court are as follows: The plaintiff is the owner of a ten-story loft building, situate at 704-706 Broadway, in the borough of Manhattan, city, county and State of New York. The defendants Cohn are copartners doing business under the firm name and style of H.- & S. Cohn, and the defendants Morris Hindin and Charles Hindin are also copartners doing business variously under the firm names and styles of Stylart Clothing Company and Hindin Bros. On or about April 7,
The said lease contained the further provision:
“ Conditioned, that * * * if there shall be any default in any of the covenants or agreements herein contained * * * this lease and the estate hereby demised shall terminate at the option of the lessor, and the lessor and his legal representatives shall have the right to re-enter the said premises, either by force or otherwise, and dispossess and remove therefrom the lessees and their legal representatives or other occupants thereof and their effects, without the said lessor giving the usual statutory notice to quit or any of the notices, or taking any of the proceedings required to be taken by the New York Code of Civil Procedure, the said lessees for themselves and their assigns hereby expressly waiving the same, and without said lessor being liable to any prosecution therefor; * * The lease also provided as follows: “ The waiver of the breach of any condition or any license dispensing with the performance of any covenant of this agreement, shall not affect the rights of the lessor for any subsequent breach_of the same or any other covenant or condition.”
Notwithstanding such express conditions of the lease and the covenants therein contained, that the lessees should not sublet the demised premises or assign their lease thereof without first obtaining the consent in writing of the lessor,
The defendants opposed plaintiff’s application for a mandatory injunction pendente lite upon the ground that it did not appear that the plaintiff would suffer irreparable damage pending the determination of his action, and in view of the fact that the plaintiff had suffered a previous subletting of a part of the leased premises by the defendants Cohn, and for a. period of three months after the defendants Hindin Bros, had taken possession under their sublease of said premises the plaintiff had taken no steps to enforce his claimed rights under said lease, that he should now be denied the temporary relief which he seeks.
I think there is no virtue in the defendants’ claim in this respect. The plaintiff unequivocally denies any knowledge of any previous subletting of said premises or of any waiver of his rights with reference to the sublease to Hindin Bros. Moreover, the lease itself provided that any waiver of a breach of any condition or any license dispensing with the performance of any covenant of the lease should not affect the rights of the lessor for any subsequent breach of the same or any other covenant or condition therein contained.
I do not think the defendants should be heard to assert
I think it does not he in the mouths of the defendants to urge that the plaintiff will not suffer damages by reason of the subletting. The plaintiff was the owner of the premises and he had a perfect right to impose such conditions as he saw fit under which he would grant a lease of the premises to the defendants H. & S. Cohn. They accepted said lease upon the conditions therein specified and cannot now be heard to dispute the same. (Weil v. Abrahams, 53 App. Div. 316.) This is not a question as to whether the plaintiff has or has not an adequate remedy at law. He is entitled to insist that his lessees obey the terms and conditions of the
It is apparent under the present condition of the calendars in New York county that, unless the plaintiff can obtain the relief by way of mandatory injunction pendente lite removing the sublessees of said premises, he will be denied any relief in this action as the lease of Hindin Bros, expires in January next.
The order appealed from should be reversed, with ten dollars costs and disbursements, and plaintiff’s motion for a mandatory injunction pendente lite be granted, with ten dollars costs.
Clarke, P. J., Laughlin, Dowling and Greenbaum, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.