Hyperlawhypertext legal database Ambler v. Skinner 30 N.Y. Super. Ct. 561

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Ambler v. Skinner

30 N.Y. Super. Ct. 561 7 Rob. 561 Court N.Y. Super. Ct. English

Delivered by Jones, J.

Contents

Majority

p. 561
John G. Ambler, plaintiff, vs. Salmon Skinner, defendant.

Headnote

1. Where a lease contained a covenant that the lessee would not assign the lease, nor let or underlet the whole or any part of the premises, without the written consent of the lessor; and by said lease the whole of the first floor was reserved to the lessor, with a privilege or use to him for the reception of company, of the front parlor, in common with the lessee ; Meld that even if, by the proper construction of the covenant against underletting, the lessee had a right to take boarders, yet the occupation of the rooms by persons other than the lessee must be in the strict character of boarders. That if one claimed a greater right, he must claim by reason of a right of occupation in some character other than that of a boarder.
2. The right to carry on business is not included in a mere right to lodge and be fed. The fact that one is a boarder with the lessee, in such a case, gives him no right to carry on a business; and as he can only get such right as a tenant, under a subletting which is prohibited by the lease, he has no such, right, as against the lessor.
3. If such person, without the consent and against the wishes of the lessor, enters the parlor of the house, remains seated there, at the only window, interferes with the window curtains, and refuses to leave the room, on being requested, and occupies and persists in occupying rooms there for the purpose of carrying on his business as a dentist, claiming the right to do so on the ground that he is a boarder of the lessee, the lessor has a cause of action against him, and a remedy by injunction.
4. A lessor is entitled to an injunction to restrain the use of premises, by the lessee, in violation of a restriction in the lease; and when such use is by a . person in possession under and claiming a right to such user through the lessee, he, as well as the lessee, may be restrained by injunction.
(Before Jones, J., at Special Term,
July —, 1867.)
Motion for an injunction.
The complaint, amongst other things, alleges that the defendant, unlawfully and without any right, daily enters into the parlor of the plaintiff, remains seated there, at the only window, and interferes with the position of the window curtains as arranged by the plaintiff, and when requested by the plaintiff to leave the curtains alone, or to leave the room, he refuses so to do, and acts in an insult
p. 562
ing, threatening and violent manner; that the defendant thus acts without the consent and against the wishes of the plaintiff; that the defendant unlawfully, and without any right, occupies and persists in occupying rooms in the plaintiff’s house for the purpose of carrying on his business as a dentist; that the defendant so sits in the parlor and interferes with the curtains, and so persists in occupying a room for the purpose of carrying on his business, claiming a. right so to do, on the ground that he is a hoarder in said house, having engaged board therein from George S. St. John and Jane his wife, to whom the plaintiff leased said house. The complaint further alleges that the said lease to George S. St. John and wife contains a covenant that the lessee will not assign the lease, nor let or underlet the whole or any part of the premises without the written consent of the plaintiff; and that by said'lease the whole of the first floor is reserved to the plaintiff, with a privilege or use to the lessor for the reception of company, of the front parlor of the first floor, in common with the lessee. . .
Upon this complaint an order was made requiring the defendant to show cause why, upon the plaintiff’s own statement, an injunction should not issue. Upon the return of this order the defendant objected,
1st. That the complaint was not sufficiently verified.
2d. That the complaint showed no cause of action, whatever.
■3d. That if it did show a cause of action, the remedy was not by injunction.

As to the first objection, the verification is as ample and positive as the jurat to an injunction bill was required to be in the court of chancery. (3 Hoff. Ch. Pr. 16.)

As to the second objection, it is contended that the de*

p. 563
fendant, being a boarder, had a right, under the lease, to do the acts complained of.

Assuming (without deciding) that by the proper construction of the covenant against underletting, the lessees have a right to take boarders, yet the occupation of the rooms by persons other than the lessees must be in the •strict character of boarders. The definition of the word boarder is, “ one who has food or diet and lodging in another’s family, for reward.” If then one claims a greater right, he must claim by reason of a right of occupation in some character other than that of a boarder. The right to carry on business is certainly not included in a mere right to lodge and be fed. The defendant being a boarder, then, gives him no right to carry on a business; and as he can only get such right as a tenant under a subletting which is prohibited by the lease, it follows that he has no such right, as against the plaintiff.

With respect to the sitting in the parlor, the right to use the parlor at all is confined, by the lease, to the lessees, and the only right accorded to them is that of using it for the reception of company.

The plaintiff, then, clearly has a cause of action against the defendant, arising out of the aforesaid acts done by him. But has he a remedy by injunction ? I think he has. A lessor is entitled to an injunction to restrain the use of premises by the lessees in violation of a restriction in the lease. (Steward v. Winters, 4 Sandf. Ch. 587 . Howard v. Ellis, 4 Sandf. 369 . Dodge v. Lambert, 2 Bosw. 570 .) And when such use is by a person in possession under and claiming a right to such user, through the lessee, there can be no reason why he, as well as the lessees, should not be restrained. (Howard v. Ellis, ubi supra.)

An injunction must therefore issue, restraining the defendant from prosecuting the business of dentist on any part of the demised premises; and also restraiuing him

p. 564
from entering the parlor on the first floor, except only for the bare purpose of calling on and visiting the lessees, in which case his stay therein shall only be prolonged sufficiently for the purpose of such visit, and restraining him from interfering with the windows, shades, blinds, curtains or furniture of said parlor.

As this injunction is granted on the allegations of the complaint, and the defendant has only been heard on the question as to whether the allegations of the complaint are sufficient to warrant an injunction, the injunction must go without prejudice to the defendant’s right to move, on an answer or affidavits denying or avoiding the allegations of the complaint, or setting up new matters, to dissolve the injunction.

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