233 A.D. 243 | N.Y. App. Div. | 1931
Upon return of plaintiff’s order to show cause why a temporary injunction should not issue, first, enjoining defendant from engaging in the produce business at any place in
The remainder of the complaint is devoted to allegations of defendant’s efforts to persuade other tenants to abandon the premises which they had leased under similar contracts with plaintiff and to break such contracts; that defendant was paid large sums of money for his activities in all of these respects, and that the erection of the new farmers’ market by plaintiff, afterwards added to the new market at the Scott street site, was partly due to defendant’s efforts. For these reasons and the further fact that defendant is financially irresponsible, the complaint alleges that irreparable injury and damage will be sustained by plaintiff unless, and prays that, a temporary injunction pending the trial, and a permanent injunction with damages, upon the trial, be granted.
Defendant admits that he was one of the occupants of the old Elk Street Market and that he was active in the prehminary agitation and promotion of the project to erect a new market, and the various organizations and movements launched and functioning during the same period in support of it. He claims, however, that when it was finally determined that the new building would nob be built on the old site, he became indifferent and gradually withdrew his interest and support, executing the lease only to save himself, being practically forced into it, and there being no other available thing for him to do. As justification for his abandoning the leased premises and setting up business elsewhere in the county of Erie, defendant asserts that after he had executed the lease, taken possession of the premises and established his business, plaintiff organized and maintained a business of selling the same sort of merchandise that defendant handled, by auction, in result
The complaint nowhere alleges that defendant at any time promised or undertook to do anything for the plaintiff with the exception of the covenants of the lease, or that it relied upon or was induced by any conduct of defendant in arranging to obtain a credit and erect these markets. So far as appears defendant acted solely as a volunteer, being interested to obtain better accommodations for his own business, and only as one of many engaged in the project of bringing about the erection of a new market for the use of everybody. There was no contractual or fiduciary relationship between him and plaintiff. He undertook nothing and they depended on nothing that he did or undertook to do. He did not deceive them into anything, and he did not accept or betray any trust. The total relationship of the parties was that plaintiff was in the business of renting space to persons engaged in the wholesale fruit and produce business and defendant, being one of such persons, was its customer. Plaintiff agreed that defendant might occupy unit No. 8 at a certain rental and defendant agreed to pay it. Plaintiff was not in the produce business and defendant was not in the renting business. Neither underwrote or participated in the business of the other. They were simply landlord and tenant. There is not such a showing of responsible cause and consequential effect here as is required in equity and good conscience before such an extraordinary and drastic remedy may be invoked, the facts and considerations present falling short of establishing
We have been referred to no precedent nor do we find one in which a temporary injunction has been granted restraining a tenant from breaking a covenant in a lease by which he undertakes not to engage in his business elsewhere than at the leased premises. ,In all the circumstances we feel that these questions should be left to the determination of the trial court after hearing the proofs of both sides. “ The question whether a court of equity should award its remedy by decreeing * * * an injunction should be reserved to the trial of the action, when a full disclosure can be made of all the facts whereby the court may determine whether it is equitable and just that the injunction should be granted.” (Brighton By the Sea, Inc., v. Rivkin, 201 App. Div. 726, 728.)
The portion of the order which granted the temporary injunction should be reversed.
It is fundamental that no person has a right to persuade a party to a binding contract to repudiate, abandon or break it. Movant’s affidavits clearly show that defendant has attempted to influence some of plaintiff’s tenants to throw up their leases, abandon the premises and engage in the same business elsewhere in the city of Buffalo. Defendant denies these charges, but upon considering the affidavits both supporting and resisting the motion, we are convinced that there is sufficient basis in fact for the granting of a temporary injunction against defendant in these respects. The court below did not deny this part of the motion on the facts but on the ground that injunction could not issue because the lease contained no provision forbidding defendant to induce other tenants to remove from the premises. This we think was error. It is not the lease but the complaint to which we must look in deciding whether or not an injunction should issue. (Civ. Prac. Act, § 877; Huntington v. Cortland Home Tel. Co., 62 App. Div. 517.) In this respect the order should also be reversed, and the motion for a temporary injunction restraining defendant from inducing or attempting to induce other tenants of plaintiff to abandon their
All concur, Crosby, J., in result as to the injunction restraining the defendant from doing business elsewhere on the ground that the lease itself is invalid under section 19 thereof. Present — Sears, P. J., Taylor, Edgcomb, Thompson, and Crosby, JJ.
Order reversed on the law, without costs of this appeal to either party, and motion for injunction restraining defendant from doing business elsewhere than upon the leased premises denied, and-injunction restraining defendant from inducing or attempting to induce other tenants of the plaintiff to break their leases granted, without costs.