Engle v. Thorn — 10 N.Y. Super. Ct. 15

Majority

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Engle, Appellant, v. Thorn and Owen, Respondents.

Headnote

E. let premises to T. <fc O., the lease providing, that the premises should he preserved . in tenantable order by T. & O., but that they should make no alteration without the consent of E. in writing. In such a case, when it is not alleged in the complaint, that the alterations are an injury to the demised premises, the court will not entertain jurisdiction of an action merely for the purpose of compelling the lessees to restore the premises as exactly as possible to the condition they were in when hired, especially when it appears that doing so would be a great injury to the lessees and no benefit to the lessor. It will, by injunction, inhibit further alterations. But it will not attempt to compel a party to do a thing, substantially impracticable, and which, if done, as nearly as is practicable in the nature of things, would not only be a great injury to the party sought to be coerced, but would be of no practical utility to the plaintiff.

(Before Oakley, O. J., Boswobth and Slosson, J.J.)

Jan. 10; 28, 1854.

The plaintiff demised to the defendants, Ho. 414 Broadway, for the term of ten years from the first of May, 1850. The lease contained these provisions. “ The premises to be preserved in tenantable order or condition by the lessees, no alteration to be made without the consent of the lessor in Writing, the premises are not to be occupied for any business deemed extra-hazardous

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on account of fire, nor shall the same be let or underlet, or any part thereof, except the upper part, basement, or rear part of store, the front store to be as a clothing or tailor’s store, and not otherwise.”

The complaint alleged that the defendants, without his consent, had cut a door through the south side of the said premises through the brick wall, to make a communication with the adjoining building, which is a hotel. It specified other alterations alleged to have been made, and stated that the defendants intended to make further alterations, and prayed judgment, “ that the said defendants do put the said premises in the same order and situation that they were at the time of executing the aforesaid memorandum or agreement, within a reasonable time, or that in default thereof tins plaintiff be at liberty to cause the samé to be done under the direction of a referee, and have execution against the said defendants for the expense of doing thereof.”

The gist of the answer was, that when the premises were hired they were in some respects dilapidated and.needed repairs. That all the changes which the defendants had made were in substance and effect improvements and repairs, and have greatly benefited the said premises, and have increased the value of the freehold and reversion thereof. That the plaintiff knew of the cutting through of the door at or -about the time-it was done, and in no manner objected thereto. That the door put up therein was made of iron, in the most substantial manner, and the construction of such door has in no way ór manner injured the said premises, and is, and long has been, and will continue to be of great use and convenience to the tenants who occupy the second story of the premises aforesaid.

The action was tried before Hr. Justice Duer at a special term of the court, without a jury. His decision was as follows:

“It is decided and adjudged that as to the matters charged in the complaint, excepting the cutting of a doorway through the brick wall on the southerly side óf the premises in the complaint mentioned, the acts and doings of the defendants in and upon the said premises, were in the nature of improvements and repairs, and not alterations, within the meaning of the agreement of hiring and letting between the plaintiff and the defendants,

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and that the cutting of said door has not materially injured said building or endangered its safety.

“ And it is further ordered and adjudged that the defendants do, at least sixty days before the expiration of the said agreement of hiring and letting, re-build and close up the said doorway with proper and suitable materials for that purpose, so as to make the same in all respects equal in solidity and durability to the other parts of the said wall, under penalty of being deemed guilty of a contempt of this court. And it is further ordered and adjudged that the defendants, their attorneys, servants, agents, and workmen, are and be perpetually enjoined from making any further or other alterations of said premises without the consent of said plaintiff.

“ And it is further ordered and adjudged that neither party recover costs in this action.”

To which decision and judgment the plaintiffs then and there excepted, and in due time appealed to the General Term, both as to the decision as to matters of law and matters of fact.

J. N. Platt, for the Appellant,

argued, among others, the following points.

I. One of the express conditions on which the defendants obtained the lease of these premises was their covenant not to alter them. It can make no difference what may be the effect of such alterations, and whether they will or will not improve the rent of the premises. Hr. Engle had a right to impose such restrictions when he let the premises, and with such restrictions affecting the rent of the premises and their value and use, the defendants leased them. Without these restrictions the defendants would not have obtained their lease, and if the premises in their then situation were less valuable than they would otherwise be, of course the defendants got them for less rent.

This being so, the plaintiff is entitled to the performance of this covenant. The Court can no more tear the seal from this covenant than they can from the one to pay rent, or to yield up the possession at the end of the term.

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II. The preceding point being correct, the plaintiff’s course of proceeding was by this action. Where a lessee covenants, for a particular use of demised premises, equity will restrict him, without an irreparable or even a substantial injury being shown, by a breach of the covenant—and if no pecuniary damage can be shown or estimated, then especially is it the duty of equity to interfere, and give a specific relief to the party injured.

Proof of a single.instance of breach is sufficient to entitle the plaintiff to an injunction, and as it is scarcely possible to estimate the injury sustained by violations of this kind, laills to restrain acts of this character will not be frowned upon by the Court. (Steward v. Winters, 4 Sand. Ch. R. 587; Sarle v. Sarle, 3 Sand. Ch. R. 601; Kane v. Vandenburg, 1 John. C. R. 11; Corning v. Lowerre, 6 John. C. R. 439.)

III. Judge Duer’s conclusions, therefore, are manifestly wrong on his own premises. If opening the door in. the wall was such a breach of the lease as to justify the decree he did make, it was clearly wrong in putting off the remedy for seven years and until the defendants’ lease had expired; and they did not then want it any longer, and we were entitled to the possession of the premises and could help ourselves.

If the other acts complained of are improvements, they are by that very term alterations, for it is hard to conceive of improvements which are not alterations—if there are no alterations there can be no improvements, for things would then be in statu■ quo.

If, then, there were these acts of the defendants, and to redress them the plaintiff had to come into court, and the defendants contested every inch and attempt to justify their conduct, the plaintiff is entitled to his costs, and Judge Duer was wrong in refusing them. (2 R. S., p. 604, § 79.)

M. G. Harrington, for Respondent.

The plaintiff demised certain premises to the defendants for ten years, from the 1st of May, 1850. The agreement was signed by both parties, and contained among others these provisions, viz. “ the premises to be preserved in tenantable order or condition by the lessees, no

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alteration to be made without the consent of the lessor in writing.”

The complaint stated that certain alterations had been made without the plaintiff’s consent, and that the defendants intended to make further alterations. It does not aver that those made have been, or may be, injurious, or that those intended will be of that character. It prays judgment, that the “ defendants dt> put the said premises in the same order and situation that they were at the time the lease was given within a reasonable time, or that in default thereof this plaintiff be at liberty to cause the same to be done under the direction of a referee, and have execution against the said defendants for the expense of doing thereof.”

There is no difficulty in restraining the defendants from making further alterations; but it is physically impossible to put the premises “ in the same order and situation that they were ” at the time the lease was executed. The extension built can be' pulled down, and all.new materials that have been added can be removed, but the old materials cannot be restored, and if they could be, the court would not interfere to compel it to be done. Such an act could be of no benefit to the plaintiff.

If the alterations made can be shown to be an injury to the plaintiff, he has a perfect remedy by action to recover the damages. So far as the alterations that have been made can be regarded as a breach of the contract, it is a breach which cannot be repaired by placing the property in the precise condition in which it was before the alterations- were made. That is impossible. The court will not attempt to do things substantially impracticable, and which, if. done as nearly as is practicable in the nature of things, would not only be a great injury to the defendants, but would render the premises less, rather than more, valuable to the plaintiff.

There is no principle of equity, jurisprudence, nor of public policy, which can justify a court in attempting to exercise such a power (9 Law & Equi. R. 249; 6 Simons, 340). The lease does not provide that a breach of this part of the agreement shall work a forfeiture, or entitle the lessor to re-enter, nor does it provide what the consequences shall be. There is no

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complaint that the premises are used for any purpose other than that for which they were hired, nor that the. alterations made do. not render the premises more valuable intrinsically, or for the business for which they were designed, or for any future use contemplated by the plaintiff.

If the plaintiff claimed damages for the alterations made, he should be allowed to make proof of damage, and if the proof established damage, compensation should be given in this action.

If the plaintiff prefers, before going into such proof, to wait until after the éffect of the alterations had b.een tested by time; the judgment should be so modified that he shall not he prejudiced by the finding in this suit, that as matter of fact, what has been done consists of repairs which actually improve the .building, instead of. alterations which are prohibited by the lease.

We think the judgment should he so modified as to absolutely ' prohibit all future alterations, hut without prejudice to the plaintiff’s right to bring an action to recover damages for any alterations that have been made, unprejudiced by any judgment in this action, that they are in fact beneficial and not an injury.

If the plaintiff prefers to make and try that claim in this action, he should be permitted to do so, and allowed to amend his complaint as may he proper for that purpose. Unless he makes such an election, a judgment will be entered modifying the judgment appealed from as above suggested, and in other respects affirming it, with costs.