Gentil v. Arnaud — 31 N.Y. Super. Ct. 641

Majority

p. 641

MADELINE LOUISE GENTIL, Plaintiff and Appellant, v. P. ARNAUD and VICTOR GIRAUDY, Defendants and Appellants.

Headnote

Where the tenant of a second story, with privilege to use a tin roof in the rear, complained that the tenant on the first story had erected a skylight in such roof—Held, notu ground for an injunction.

The injury is one a court of law is competent to compensate in damages, especially if the injury is not claimed to be irreparable, and the defendant is not alleged to be unable to respond.

Before Monell, McCunn, and Fithian, JJ.

[Decided December 4, 1869.]

This was an appeal from an order made at Special Term, by Mr. Justice McCunn, dissolving an injunction which restrained the defendants from cutting through and erecting a skylight upon the roof of the premises No. 815 Broadway.

Mr. J. Henderson for appellant.

Mr. Roger A. Pryor for respondents.

By the Court:

This is a controversy between the tenants of different portions of the building No. 815 Broadway, each claiming the right to the possession of a certain tin roof over a rear building. The plaintiff alleged in her complaint that she had hired the whole of the second floor with the privilege of using the tin roof, which is on a line with such second floor, and upon which, with the permission of the landlord, she had constructed an apartment or work-shop; that the defendants, who occupy such rear building, were about to cut through the tin roof and erect a skylight therein, to the injury of the plaintiff. The defendants claim the right to the possession of the tin roof as the tenants of the rear building, which is covered by such tin roof.

p. 642

This is a controversy which a court of law is competent to settle. The act complained of would at most be a mere trespass. " If the plaintiff has the best right to the tin roof, then the use of it by the defendants is unauthorized, and they must pay such damages as the plaintiff can show she has sustained. Or if the landlord, after leasing to the plaintiff, gave another lease to the defendants, it may be that such an interference might be a constructive eviction which would relieve the plaintiff from the payment of rent.

■ However that may be, the parties must be left to a court of law, especially as the injury to the plaintiff is not claimed to be irreparable, nor are the defendants alleged to be unable to respond in damages. The injunction was, therefore, properly dissolved.

The order should be affirmed, with costs.