Kienle v. Fred Gretsch Realty Co.

for that month, and monthly thereafter, an additional payment of twenty dollars and eighty-three cents for such additional power, which was refused, and at noon on the following day the defendant shut off the power and commenced summary proceedings to remove the plaintiff from the premises; that because he was then engaged in the manufacture of inks under a contract for quick delivery, which the cutting off of the power prevented his performing, on the day after the precept issued he paid, under protest, the twenty dollars and eighty-three cents demanded, and has since that time retained possession of the premises and continued to pay monthly the advanced rate under protest; that defendant threatens that unless such payments are continued it will put off the power and institute summary proceedings to eject plaintiff from the premises, which would bring his business to a standstill and cause him great loss and irreparable damage, for which he has no adequate remedy at law. The relief asked under this cause of action is an injunction restraining the defendant from cutting the power off as threatened and from having recourse to summary proceedings, in addition to which a recovery is asked of the money paid for extra power. The lease declared upon is annexed to and forms part of the complaint, and its terms, for the purposes of this demurrer, control general allegations and .conclusions, having for their purpose the qualification of its provisions. Such allegations must be disregarded. (Bogardus v. N. Y. Life Ins. Co., 101 N. Y. 328 , 337.) Its provision as to power is as follows: “ This lease also to include the furnishing of twenty-five (25) horse power, based on the rated capacity of the motors. All power used in excess of said 25 H. P. to be.paid for at the rate of fifty ($50) dollars per horse power per annum (220 volt current).” There is no allegation in the complaint that the motors used were, or did not exceed, twenty-five horse power, and the 7tli and 16th paragraphs, it seems to me, admit, as claimed by the appellant, that their rated capacity was more than twenty-five horse power. The lease clearly bases the power to be furnished upon the rated capacity of the motors, and in view of the. admission referred to, the allegation that plaintiff has not used at any time more than the twenty-five horse power stipulated in the lease does not establish a breach of the. contract. The rated horse power of the

motors used exceeding twenty-five, the ’defendant was entitled to the additional. payment for each rated horse power in excess of twenty-five, as provided by the lease, and it follows that the facts alleged. are insufficient to justify the relief demanded by injunction. Threatened1 or apprehended injury, where it is alleged to be irreparable, and' that no adequate remedy therefor exists at law, is the mere conclusion of the pleader, and of no legal effect, unless ■ facts which support and justify such conclusion are pleaded, from which the court can determine whether or not the conclusion is justified. In the absence of such facts a complaint in equity is bad. (Brass v. Rathbone, 153 N. Y. 435 .) The allegations contained in' the first sixteen paragraphs of the complaint contain no averments of fact justifying the conclusion that the plaintiff is exposed to irreparable damage for which he has no adequate remedy at law. It is not alleged that plaintiff had- any unfinished business or contracts on hand at the time of the commencement of the action, nor is the character of his contemplated future business. He does, not aver any inability to procure all the power he requires from sources other than the defendant, or that he- is unable to procure other premises fully equipped for the carrying on of his business; and while he concludes that he has no adequate remedy for his grievances at law, he alleges a second cause of action to recover damages resulting from the acts complained of in the first cause of action upon the basis of a breach of the contract to furnish power, which, if proven, is certainly an adequate remedy enforcible at law. Plaintiff has no right to an injunction restraining threatened summary proceedings in the future; he alleges facts tending to show a legal defense t.o such' proceeding, but this will not justify the relief sought. This rule is uniformly supported by the authorities, the only exception being that equity may intervene to protect a party against vexatious and oppressive litigation, after the merits have been litigated in a court of law and decided in favor of the contention of such- party. (Savage v. Allen, 54 N. Y. 458 ; Wolfe v. Burke, 56 id. 115; Wallack v. Society, etc., 67 id. 23; Baptist Mission Society v. Potter, 20 Misc. Rep. 191 ;. Coykendal l v. Hood, . 36 App. Div. 558 .) A cause of, action is not alleged for the recovery of the several- payments

made for extra power, although paid under protest. There is no coercion or fraud alleged, and no claim that the demand was paid under a mistake of fact or law. . The payments were voluntary, and made with full knowledge of the existing facts, and for that reason not to be recovered back, even if the defendant had' no right to compel their payment. (People v. Wilmerding, 136 N. Y. 363 , 374; Consolidated Fruit Jar Co. v. Wisner, 103 App. Div. 453 , 457.) The plaintiff cannot recover the special damages alleged in the second cause of action, because there are no special facts alleged removing the case from the operation of the general rule that the proper measure of damages is the difference between the rental value of the premises with the power contracted for and their rental value with the power furnished. ( Witherbee v. Meyer, 155 N. Y. 446 .)

The case of Egan v. Browne ( 128 App. Div. 184 ) does not support the respondent’s contention, as the case here presented is not within the rule therein declared. That case presented an action in tort for the alleged willful and malicious acts of the landlord in cutting off the tenant’s steam, the tenant being unable to procure another place equipped to carry on his business, and not upon the covenant in the lease to furnish steam.

Under the allegations of the complaint I do not see how the plaintiff could give evidence as to the difference in rental values. (Manhattan Stamping Works v. Koehler, 45 Hun, 150 .) Even though nominal damages might be presumed to result from the alleged breach of the agreement, and upon the assumption that the complaint, although not framed upon that theory, states a good cause of action to recover such damages, the demurrer should not have been overruled. (Hasbrouck v. New Palts, Highland & Poughkeepsie Traction Co., 98 App. Div. 563 .) Nor can the ruling of the learned Special Term that the complaint is sufficient to sustain an action for specific performance, which justified the overruling of the demurrer, be sustained. The test to be applied is whether sufficient facts are alleged to sustain a judgment for the relief demanded. Plaintiff could not have judgment for specific performance, Ms demand being for relief by injunction. (Has brouck v. New Paltz, Highland & Poughkeepsie Traction Co., supra.)

The interlocutory judgment must be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to serve an amended complaint within twenty days on payment. '

Hirschberg, B. J., Woodward, Burr and Miller, JJ., concurred. '

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiff to serve an amended complaint within twenty days on payment.