Sloan v. Martin — 54 N.Y. Super. Ct. 87

Majority

p. 87

MATILDA SLOAN, as Executrix, &c., Respondent, v. WILLIAM R. H. MARTIN, et al., Appellants.

Headnote

Covenant—restraining breach of by injunction.

The breach of a covenant in a lease not to underlet, will be restrained by-injunction ; it appearing that it would be impossible to accurately ascertain the damages that would arise from its breach, and no facts being shown which would make it inequitable to enforce it.

Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

Decided December 17, 1886.

Appeal from order granting injunction.

Action to restrain a breach of a covenant, contained in a lease made by George Sloan, of whose will the plaintiff was sole executrix, to William R. H. Martin and Frank R. Chambers, not to assign the lease or un derlet the premises, or any part thereof, without the landlord’s consent.

The defendants, Martin and Chambers, threatened to underlet a portion of the demised premises to defendant, The American News Company, for a term of sixty days. The lease contained a clause that if default should be made in any of its covenants on the part of

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the lessees to be kept, then it should and might be lawful for the lessor, his successor or assigns upon the said demised premises, and every part thereof, wholly to reenter and the same to have again, re-possess and enjoy as in their first and former estate. It also contained a clause that in case of default in any of its covenants the lessor might resume possession of the premises and re-let the same for the remainder of the term at the best rent that he could obtain on account of the lessees who would make good any deficiency.

A motion was made on the complaint and an affidavit, for an injunction restraining such sub-letting and restraining the defendant, The American News Company, from occupying the demised premises or any portion thereof, during the pendency of the action. The motion was opposed on affidavits which defendants claimed fully met and denied all the allegations in the moving papers as to irreparable or any injury arising from the sub-letting in question.

The motion was granted; and from the order entered on the decision granting it, defendants appealed.

George J. Peet, attorney and of counsel for appellants, argued :

I. An injunction will not lie to restrain the breach of a covenant unless the plaintiff shows that he will suffer irreparable injury thereby (Hilliard on Injunctions, chap. 1, § 32; Dyke v. Taylor, 3 D., F. & J. 467).

Every statement in the moving papers as to any injury to result is denied by the affidavits on the part of defendants, or shown to be a gross exaggeration; It is well settled that where the material facts alleged in the affidavits relied upon by the plaintiffs to sustain an injunction are denied under oath, such denial defeats the injunction (Hilliard on Injunctions, p. 126; Am. Grocer’s Pub. Assoc, v. Grocer’s Pub. Co., 51 How. 402 ; Roberts v. Mathews, 18 Abb. Pr. 199 ).

II. The plaintiff has adequate remedies at law, and

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the fact that ample remedy exists at law for violation of a covenant is always sufficient objection to the interference by injunction [High on Injunctions, 2d ed., § 1107). In the case at bar the plaintiff has the remedy of an action for damages for a breach of the covenant. The sub-letting was not to be for a longer period than sixty days, and if any damages accrued therefrom, they could be easily determined by a jury, and, without doubt, collected. There is affirmative proof that the lessees are amply able to answer in damages. The existence of this remedy alone is sufficient to defeat the injunction. But the lease provides another remedy. The lessor has reserved the right to re-enter the premises for covenants broken, and remove all persons therefrom. And the lease also provides that the lessor may re-let the premises on account of the lessees, and hold them for any deficiency. The remedy of forfeiture is a severe and ample one, and is provided for by the parties themselves in the lease, to be applied in case of a breach of the covenant. This remedy would not exist if not so provided in the lease (Taylors Landlord and Tenant, § 291). Trenor v. Jackson (15 Abb. Pr. N. S. 115), is a direct authority in point against the injunction.

III. The proposed sub-letting to the News Company would not be a breach of the covenant. The covenant in question is not a covenant “not to sub-let,” but “ not to sub-let without the consent of the lessor.” These do not mean the same. A covenant “ not to sublet” does not contemplate a sub-letting to anybody or under any circumstances, but a covenant not to sub-let without the consent of the lessor does contemplate a subletting. It implies a sub-letting to a proper sub-tenant, and that when such a sub-tenant is procured, the lessor will give his consent, otherwise the lessor could, during the entire existence of the lease, from a mere caprice, whim or fancy, from pique or feelings of resentment, or for no reason at all, prevent his lessee from sub-letting any portion of the premises to any one, however excel

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lent a sub-tenant he might be. In this case the respondent’s objections to the American News Company, as sub-tenants, are shown to be baseless or founded on her mistake and misapprehension; nevertheless the respondent refuses her consent to such sub-letting, even for one month on trial, and invokes the covenant to sustain her position. Such an interpretation of the covenant is a harsh and oppressive one. A court of equity will not restrain by injunction the violation of a harsh and oppressive covenant in a lease (Talbot v. Ford, 13 Sim. 173). Courts of equity always interpret covenants Strictly against the covenantee. And covenants not to assign or underlet are construed with the utmost jealousy (Ta ylor's L. & T. §§ 402-3).

Maclay & Forrest, attorneys, and Michael M. Forrest, of counsel for respondent, argued:

I. If the American News Company be permitted, in violation of the terms of the covenant in the lease, to enter into possession of any portion of the premises, it would create an unbearable nuisance to the plaintiff and the tenants in the other portions of the building, by reason of the number of people who would be attracted to their place of business at all hours of the day and night—the business of the defendant being to distribute the New York papers to newsboys and dealers.

II. The covenant' in the lease is plain and simple, and not an objectionable one, and was entered into oy consent of all the parties to the lease.

TTT- This being so, a court of equity will recognize and enforce it as well as other agreements concerning the occupation and mode of use of real estate (Steward v. Winters, 4 San. Ch. 587).

IY. Where the lessee covenants as in this case, equity will keep him to his covenant, without irreparable or even substantial injury being shown from a breach of the covenant (Ib.; Howard v. Ellis, 4 Sand. 369 ; Engle v. Thorn, 3 Duer, 15 ).

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V. ' One of the express covenants of the lease, and a condition on which the defendants obtained it, was their covenant not to underlet or assign—the lessor had a right to impose such a condition when he let the premises—and the defendants accepted i,t. Without such restriction the defendants could not have' obtained their lease, and knowing this they accepted it. This being so, the plaintiff is entitled to the performance of the covenant, and the defendants having threatened to break it, she is entitled to bring this action, and to have the injunction sustained, even if no pecuniary damage can be shown or estimated, for in such a case it is peculiarly the duty of equity to interfere and give specific relief to the party to be injured (McAdam, Landlord & Tenant, 361, 372, 374).

VI. The case of Trenor v. Jackson (15 Abb. N. S. 115), cited by the defendants, is answered by the fact that the right of re-entry reserved in the lease is at the option of the plaintiff, and is one which she does not choose to exercise (Clark v. Jones, 1 Den. 516 ).

The premises described in the complaint were leased to the defendants, who covenanted not to assign the lease or under-let the premises or any part thereof without the landlord’s consent in writing.

By that covenant the plaintiff reserved to herself the right to refuse to allow a person to occupy the premises without her consent. To this the defendants have agreed. It will not do to say that the defendants consider the proposed tenant unobjectionable. The covenant is that plaintiff shall consent. The plaintiff is the one who is 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 such covenant.

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On the case as presented by the affidavits, we think the plaintiff was entitled to the injunction granted, and the order appealed from should he affirmed with |10 costs and disbursements.

Cases cited

Roberts v. Mathews 18 Abb. Pr. 199 N.Y.C.P. p. 88