26 N.J. Eq. 82 | New York Court of Chancery | 1875
The bill was filed to restrain the' defendant from depriving the complainants of the power requisite to run their machinery in buildings demised by him to- them, and from depriving them of the blast from- the fan on his premises, to the forges in the blacksmith’s shop,, one of the demised buildings. The premises were demised- by the defendant to-the complainants, by a lease dated July 1st, 1871, for five years, with the privilege of renewal for five years longer. By the lease, the defendant agreed' to- furnish,, at his expense, the necessary power as then furnished for the machinery in the buildings thereby demised. The complainants had occupied the premises from. 186-6, under another lease from the-
The complainants appear not to have observed strictly the provision of the lease as to payment of the rent, and the defendant, by the admissions of his answer, seems to have acquiesced. The bill alleges that the rent has, from the commencement of the term, been paid at irregular intervals, sometimes once a month and sometimes once in two months; that the defendants never strictly enforced the covenant for payment of the rent according to the terms of the lease, and
o The defendant, by his answer, admits that sometimes the payment went over to the following month, or was paid by promissory note, but alleges that he remonstrated, at different times, to the complainants against such delay, and claimed that they had forfeited their lease. He further admits that within ten days after the notice was given, McKenzie, one of the complainants, met him on the premises and asked him if he was afraid of losing his rent; to which he replied, no; that he was not afraid of his rent, but he had been waiting ever since they had started a foundry, or another business, so that he could “get shut” of them. McKenzie swears, in his.affidavit annexed to the bill, that the defendant said he was not afraid of losing his rent, but that he had been waiting to catch the complainants ever since they built a foundry. If the defendant, by his acquiescence, induced the complainants to believe that strict observance of their covenant to pay the rent, was not required by him, it is inequitable in him, under the circumstances, to seek to enforce the forfeiture. Besides, full compensation can be made to the defendant for the failure of which he complains, and under such circumstances equity will relieve. Story’s Eq. Jur., §§ 1314, 1315 ; Taylor’s Land, and Ten., § 495; Atkins v. Chilson, 11 Metc. 112. In that case, relief was granted at law. The question, therefore, whether the defendant was or was not bound to make demand before re-entry, is unimportant. The injunction must be retained until the hearing.
Nor can the modification asked for be granted. Whether the right to the blast did or did not pass under the demise of the “necessary power for the machinery in the buildings,” it is clear that the blast has been supplied from the defendant’s fan to the blacksmith’s shop, demised to the complainants, through a conduit, laid down by the. latter, for many years past—the complainants say, since 1866. It appears that