Sloane v. Martin — 8 N.Y. St. Rep. 139

Majority

p. 139

Matilda Sloane as Executrix, Resp’t, v. William R. H. Martin, Frank R. Chambers and The American News Co., App’lts.

(New York Superior Court, General Term,

Filed December 17, 1886.)

Headnote

Lease—Injunction—Will lie to restrain the breach op a covenant NOT TO RE-LET.

Aii injunction will lie to restrain a breach of a covenant contained in a lease. “ not to assign the lease or underlet the premises, or any part thereof, without the landlord’s consent in writing.”

Appeal from an order granted by Mr. Justice Truax, on the 25th day of September, 1886, continuing, during the pendency of this action, the preliminary injunction theretofore granted by him, restraining the defendants, Martin and Chambers, from letting, leasing or sub-letting any portion of the premises mentioned in the complaint to the defendant, The American Hews Company, and restraining the defendant, The American Hews Company, from entering into possession of any portion of the said premises.

On the 7th day of May, 1886, George Sloane, the plaintiff’s testator, by an instrument in writing, leased to the defendants, Martin and Chambers, composing the firm of Rogers, Peet & Co., for a period of seven years, from the

p. 140

first day of September, 1886, the store and basement situate on the northeasterly corner of Broadway and Thirty-second street, at a yearly rental of $15,000. The lease was executed by all the parties, and, among others, contained a covenant in the following words, “That the tenant shall not assign this agreement, or underlet the premises, or any part thereof, or make any alterations, in the building or premises, without the landlord’s consent in writing; or occupy, or permit to be occupied for any business deemed extra hazardous on account of fire.” On or about the 30th day of May, 1886, the said George Sloane died; his will has been admitted to probate and the plaintiff is the sole executrix thereof.

On the 1st of September, 1886, the defendants Martin ancL Chambers entered into possession of the premises in question.

Since the 1st of September, 1886, the defendants Martin and Chambers have been in negotiation with the defendant The American News Company for the purpose of assigning or sub-letting a portion of the premises to the defendant The American News Company; and The American News Company have agreed to take and sub-let from the defendants Martin and Chambers, and at the time of the commencement of this action were about to enter and use the same for their business as newspaper distributors without the consent, and against the will of the plaintiffs.

George J. Peet, for app’lts; Marclay and Forest, for resp’ts.

The premises described in the complaint were leased to the defendants, who covenanted not to assign the lease or underlet the premises or any part thereof without the landlord’s consent in writing. By that covenant the plaintiffs reserved to themselves the right to refuse to allow a person to occupy the premises without-their consent, to this the defendants agreed. It will not do to say that tire defendants consider the proposed tenants unobjectionable. The covenant is that the plaintiffs shall consent. The plaintiffs are the ones to determine that question. The court cannot substitute its judgment for that of the lessor.

The papers show that it would be impossible to accurately ascertain the damages that would arise from the breach of this covenant, and no facts are shown which would make it inequitable to enforce the covenant.

On the case as presented by the affidavits, we think the plaintiffs were entitled to the injunction granted and the order appealed from should be affirmed, with ten dollars, costs and disbursements.