15 How. Pr. 81 | N.Y. Sup. Ct. | 1857
It is quite apparent that the injunction in this action has proved entirely abortive. Whether
This injunction the defendant immediately applied to Judge Strong, to dissolve or modify, stating in his affidavit that he purchased said building at auction sale, and was the owner of one-half thereof and that the effect of the injunction was to prevent the owner of said property from beneficially enjoying the same and building thereon, and that to enable the said parties to perform their agreements, (that is, to build thereon in six months,) it will be necessary that defendant should remove the said buildings at as early a date as possible, and that if the injunction is retained, it will prevent such parties from using the same, &c. And further, “ that the damage he will sustain by reason of the delay resulting from being prevented from tearing down and removing said building, will be at least $800, in addition to the value of the materials.” And further, that “ the sum of $400 will be entirely inadequate to compensate defendant for the damage he will sustain if said injunction is retained unmodified.” And further, that he is advised that it is doubtful in case he should not remove said buildings by the 8th. of June, whether defendant would not be liable for damages, &c.; and also admitted that he told the plaintiff, on or about the first of May, that “ he was going to commence taking down the church, the next week, &c.” Upon this affidavit and others, showing that the residue of the building, except the portion occupied by plaintiff, could be taken down without injury to the plaintiff or interfering with his use and enjoyment of the store occupied by him, Judge
Immediately upon the granting of this order, the work of demolishing said building is recommenced, and the whole building, except the walls of plaintiff’s store, are torn down; the roof over this store removed; his window broke in; a shed erected over his front window; his awning broke away, and his store rendered almost inaccessible from obstructions in the street, and entirely unsafe and uncomfortable, and the full and free use thereof entirely interrupted.
The injunction has thus been entirely frustrated. It has not sufficed to afford the slightest protection to the plaintiff. His property has been exposed to injury from the rains, and his occupation of the store rendered scarcely endurable.
The plaintiff had a lease of this store.' He was entitled to occupy peaceably. The respondent had not the slightest right to interfere with his full and complete enjoyment of said store. The injunction was designed to protect this right, and prevent such interference, and while it remained in force should have been obeyed.
The defendant now says, in effect:—True, the rights of the plaintiff have been entirely disregarded, the object of ¡the injunction entirely frustrated, but I am not to blame. My partner, Bissell, perpetrated the wrong. I was merely passive, while he disregarded the injunction. I looked on and saw him do it. I watched, superintended and inspected the work of demolition, but Bissell employed the hands; he, in fact, directed the work.
But this will not do. An injunction cannot be evaded in this way. The defendant applied for its modification, avowing the work to be his,—the injury to be his, in part at least. He declared to the plaintiff and others, that he intended to tear down the building before the work began. He was daily there