67 N.J. Eq. 191 | New York Court of Chancery | 1904
The complainants, as owners of the fee and lessors, file this bill against Wadsworth, their lessee, and the G-oerlre Company, a sublessee of part of the leased premises, to enjoin the violation of a covenant in the lease, relating to cutting through the walls of the building on the premises and to compel the restoration of the walls to their original condition when leased. The premises leased to Wadsworth comprised a four-story building, No. 157 ifarket street, in the city of Newark, and a building adjoining it' in the rear in the shape of an “L,” fronting on another street, this “L” extension being known as No. 12 Library court. This latter building extended also in the rear of the buildings Nos..
“And it is further understood and agreed that at the expiration of this lease, upon the request of the party of the first part [the lessors] in writing, the party of the second part shall close with brick the entrance cut through from said No. 12 Library court to No. 151 Market street, and no other outside wall or walls of or between No. 157 Market street and No. 12 Library court shall be cut through by the party of the second part, nor shall any alterations or additions be made without the written permission of the party of the first part.”
The lease contained a further covenant on the part of the lessee not to use the premises, or any part thereof, or permit ,any part to be used for any purpose more hazardous than that of an ice cream and candy factory and store, without the written consent of the lessors, their heirs, assigns, agents or attorneys, under the penalty of forfeiture and damages. It was further agreed that the lessee might have the right to sublet any part or portion of the premises, provided the occupation should not be for any more hazardous business, and that the conditions, obligations and agreements of the lessee should bind the lessee, his-heirs and assigns, and that each and every one of the considerations specified were to be performed fully and in the manner-specified. Wadsworth took possession of the entire premises-
“And it is further understood and agreed that at the expiration of this lease, upon request of the party of the first part, in writing, the party of the second part shall close with brick the entrance cut through from said No. 12 Library court and No. 151 Market street, and that he will not cut through any other walls of the premises hereby demised, nor make any alterations or additions, nor sell or assign this lease, nor use or permit the whole or any part thereof to be used for any other purpose than an ice cream and candy factory and store, without the written consent of the said party of the first part, their heirs, assigns or attorneys, .under the penalty of forfeiture and damages.”
The conditions, obligations and agreements of this lease were also binding on the lessee, his heirs and assigns, and each of the considerations specified was to be performed fully and as set forth. The second lease contained no provisions relating to subletting.
On August 7th, 1902, the lessee gave a sublease of the second, third and fourth stories of No. 157 Market street for seven years, at tire yearly rent of $1,200, to the defendants, the Goerke Company, who then owned or occupied the building across the alley, No. 159 Market street, and carried on there and also in Nos. 153 and 155 Market street, adjoining the leased premises on the west, the business of a large department store. By the sublease the Goerke Company agreed not to use airy part of the premises, nor permit them to be used, for any other purpose more hazardous than that of an ice cream and candy factory, nor for any other purpose save such as was permissible under the two indentures of lease to Wadsworth, which were recited. The sublease contained the following recital in relation to the use of the premises No. 157 Market street by the subtenant in connection with theit store No. 155 Márket street and with their other store, No. 159 Market street, on the east side of the alley:
*195 “And it is further agreed between the parties hereto that whereas, the said The Goerke Company is the lessee or owner or occupants of divers premises adjoining the premises hereinabove demised, and.also of other premises to the east of the premises hereby demised and separated therefrom by a certain street known as Wilbur’s alley;
“And whereas, it is the intention of the Goerke Company to use the said premises in connection with the other premises hereinabove mentioned leased, occupied or owned by it, and for that purpose, to connect the premises herein demised with the premises aforesaid by means of bridges or other means or methods of connection:
“Now, therefore, it is agreed between the parties hereto that for the purpose of making said connections or communications between the demised premises and the other premises leased, used or occupied by the said The Goerke Company, the said The Goefke Company take such possession of the premises herein demised before the aforesaid first day of October, nineteen hundred and two, as may be necessary for the said Goerke Company to have for the purpose of making the aforesaid connections or communications, so that the same may be completed before the said first day of October, and in the event that the said The Goerke Company shall take possession of the premises aforesaid prior to the first day of October, nineteen hundred and two, then the said Goerke Company shall, at its own expense, move the property of the said party of the first part from the said demised premises to one hundred and fifty-one Market street, in the city of Newark.
“And it is further agreed between the parties hereto that whereas divers questions may arise in making the connections or communications in the last preceding clause referred to between the premises herein demised and the premises now leased, occupied or owned by the Goerke Company if the said The Goerke Company shall fail to secure consent according to the terms of said lease or if for any reason the said The Goerke Company shall be unable to make the said connections and communications, then, at the option of the said The Goerke Company, its successors and assigns, the said The Goerke Company may surrender this lease, and upon the making of said surrender, this indenture of lease and anything herein contained shall cease and terminate, anything herein-before to the contrary notwithstanding; and in the event of the terminating of the said lease as aforesaid, if the said The Goerke Company shall have taken possession of the said demised premises for the purpose of making the connections and communications in this lease mentioned, and shall have moved the said party of the first part to the premises one hundred and fifty-one Market street, then and in such event the said Goerke Company, at its own expense, shall remove the property of the said party of the first part by it theretofore moved and replace the same upon the premises herein demised.”
After the execution of this sublease, and about the middle of September, 1902, the defendant company cut down to the
It was contended at the hearing that the complainants’ remedy was at law, and that an injunction, mandatory or other, could not be granted, because no irreparable injury to complainants had been or would be caused, and complainants’ damages were the proper subject of money compensation by action for damages. It is, however, settled law that agreements restricting within reasonable limits the use of premises may be made upon their sale or lease, and that when such restrictions are made, they ai’e considered to be part of the consideration upon which the vendee or lessee receives the premises or their possession. The vendor or lessor is therefore usually entitled to the specific performance of the lawful agreements relating to the use or enjoy
Independent of the jurisdiction to enforce covenants, the injunction in this case may properly be granted on the ground that the changes made by the defendant company are material alterations of the building, which constitute waste. Windows admitting light are discontinued and openings for doors substituted, a material difference in the easement in the adjoining alley. A subtenant may be enjoined from committing waste. Farrant v. Lovell, 3 Atk. 723. Complainants are therefore entitled to a mandatory injunction requiring the removal of the bridges from the walls and alley and the restoration of the windows, and a perpetual injunction against the erection of bridges in the future. On the application for preliminary injunction the defendant company, as a condition for denying it, gave a bond to pay damages, to be assessed by this court. I will hear counsel on the order or decree to be made in reference to the damages.