1 N.Y.S. 631 | N.Y. Sup. Ct. | 1888
This action was brought to restrain the defendant from preventing the plaintiff’s use of a water-closet and Croton water, the use of which was secured by lease, and from interfering with them in the use of the fifth floor of the premises designated in the complaint as a part of the demise covered by the lease. In addition to this relief, the plaintiffs demanded judgment for the damages occasioned by the wrongful acts of the defendant in interfering with the full enjoyment of the premises in the manner designated in the complaint. When the issues came on for trial at the special term, the counsel for the defendant demanded a trial by jury. The demand was resisted, and thereupon the plaintiffs, in order to defeat the object of the defendant, elected to waive all claim for damages, and struck out the prayer therefor from the complaint. When that was done, the counsel for the defendant moved to dismiss the complaint, upon the ground that it did not contain facts calling for the equitable intervention of this court, and on the further ground that the facts set out in the complaint did not constitute a cause of action. The motion was granted, and hence this judgment and appeal.
The lease secured to the defendants, in express terms, the demise particularly stated, and also the right to the use, on the third floor of the building, of the water-closet and Croton water, and the right to use the fifth story of the building to store fuel, etc.; and the allegation as to the violation of the right thus secured was that the instrument to which reference has been made, was executed with the express understanding, intention, and agreement of the parties that the plaintiffs and their employes should continue to use said water-closets and Croton water during the continuance of the term, and the extension thereof provided for in the instrument, and should at all times, while
Daniels and Bartlett, JJ., concur.