113 Misc. 184 | N.Y. Sup. Ct. | 1920
On the 20th day of May, 1920, the parties entered into an agreement whereby the plaintiff, in consideration of the sum of $11,250, gave permission to the defendant “ to tear down, demolish and carry away the buildings located on the plot of land on the
The plaintiff claims that more than forty working days have .elapsed since the beginning of the work and that the defendant is unreasonably delaying the work. It therefore asks for an injunction against the defendant interfering in any way with the demolition of the
It is clear that more than forty working days have expired since the commencement of the work, unless the defendant’s contention is correct that the work was delayed by strikes and rainy days. Ordinarily the court will not grant an injunction where the facts upon which the injunction is based are disputed, but in this case the denial by the defendant is not at all convincing because it is contradicted by the official weather reports and by an officer of the House Wreckers Union. The loss to the plaintiff if the defendant is permitted to continue to work for an indefinite time would be large and not subject to calculation and under the circumstances it seems to me that the plaintiff is entitled to an injunction upon giving the defendant a bond sufficient to cover his possible damages.
The defendant further claims that under the contract the plaintiff has reserved the right to enter only in case of a strike and that since the contract provides for liquidated damages in case of a breach, the plaintiff cannot claim the right to enter upon the premises except under the circumstances provided for in the contract and that if the defendant has breached his contract, the plaintiff is protected by the liquidated damages. Neither of these contentions seems to me to deserve serious consideration. The plaintiff has a right to re-enter only as provided in the contract during the existence of the contract but clearly in ease of breach of the contract it has a right to re-enter upon its own property and to remove the buildings erected thereon and it would be absurd to suppose that the parties contemplated that the defendant could breach his contract and delay the work for an indefinite time and yet be entitled to the benefits of the contract. The breach of the contract in itself deprives the defendant
Motion for an injunction is, therefore, granted upon condition that the plaintiff gives a bond in the sum of $30,000 in accordance with section 620 of the Code.
Ordered accordingly.