Lexington & Fortieth Corp. v. Callaghan

Lehman, J. The appellant does not, upon this appeal, challenge the findings of fact or the conclusions of law contained in the formal decision after trial of the action. The attack is confined to provisions inserted in the judgment by the justice who tried the case, after, the formal decision *529 was signed by him and entered. The appeal is taken upon a bill of exceptions which in accordance with the provisions of rule 232 of the Rules of Civil Practice contains none of the evidence taken at the trial, since such evidence is not “ necessary to present the questions of law which are to be raised on the appeal.” The findings of fact establish that the defendants have leased space occupied as stores on the ground floor of a building owned by the plaintiff Lexington and Fortieth Corporation and occupied as a hotel by the plaintiff Hotel Concord, Inc. The defendants under their lease are permitted to alter the stores leased to them only if the plaintiffs give consent in writing and if the defendants comply, in other respects, with conditions set forth in the lease. In July, 1937, the defendants, “ without objection from and with the knowledge and consent of the plaintiffs,” altered the interior of the stores and in August, 1937, they altered the outside of the stores “ without plaintiffs’ knowledge, acquiescence, consent or permission, expressed or implied in any form whatever.” There are findings, too, “ that said outside changes consisting of plaster front, small windows and lack of recessed doors cheapened the character and appearance of the hotel ” and “ that the plaintiffs have not done or omitted to do any act or thing which would operate, either by way of waiver or estoppel, to bar them from the relief to which they are adjudged to be entitled by the conclusions of law hereinafter set forth.” The conclusions of law adjudge that “ (4) plaintiffs are entitled to a permanent injunction restraining Cornelius Callaghan, Catherine Callaghan and Lexington Avenue and 40th Street, Inc., from further alterations on the said premises, except as is specifically provided for in the said lease and modification agreement. “ 5. The motion of the plaintiffs to dismiss the affirmative defenses pleaded by the defendants Cornelius Callaghan, Catherine Callaghan and Lexington Avenue and 40th Street, Inc., is granted. *530 “ 6. Plaintiffs are entitled to judgment against Cornelius Callaghan, Catherine Callaghan and Lexington Avenue and 40th Street, Inc., in accordance herewith.” An injunction restraining the defendants from “ further alterations ” would, it is plain, afford the plaintiffs no redress for the wrong done to them by the defendants through the. changes already made which “ cheapened the character and appearance of the hotel.” Complete redress for that wrong would require that the plaintiffs be awarded not only a money judgment for any damages which they may have suffered, but also a mandatory injunction directing the defendants to restore the exterior of the building to its original condition. Doubtless the conclusion of law that the plaintiffs are entitled “ to judgment * * * in accordance herewith ” was intended to indicate that the judgment should contain provision for an appropriate mandatory injunction, but it certainly does not formulate the terms of the judgment to be entered. The judgment as thereafter entered enjoins and restrains the defendant from making “ further alterations ” as provided in the conclusions of law. It then provides that “ it is further Ordered, Adjudged and Decreed, that plaintiffs are entitled to a mandatory injunction against the defendants Cornelius Callaghan, Catherine Callaghan and Lexington Avenue and 40th Street, Inc., and the aforesaid defendants are directed to forthwith remove the rear door and present front as reflected in Plaintiffs’ Exhibits 8 and 9, and restore the said premises, both rear and front, to their conditions existing prior to the said alterations herein complained of, as reflected in Plaintiffs’ Exhibit 3, and as indicated in Plaintiffs’ Exhibit 7, prior to the time one of the rear windows was broken through, provided nevertheless that in lieu of such immediate removal and restoration, the said defendants, within ten days after service of a copy of this order and notice of entry, may post in escrow with the attorney for the plaintiffs a good and sufficient bond in the penalty of $2,500 conditioned upon restoration of the premises, at the expiration of its lease to their original *531 state.” The plaintiffs now urge that under the findings and conclusions of law contained in the decision, no judgment could be signed by the trial justice and entered, which annexed a proviso or stay, not contained in the decision, to the mandatory injunction. A mandatory injunction is an extraordinary remedy to which a suitor has no absolute right but which may be granted or withheld by a court of equity in the exercise of its discretion. Even where the facts which would justify the grant of an extraordinary remedy are established, the court must still decide whether, in the exercise of a sound discretion, it should grant the remedy, and if granted, the terms and conditions which should be annexed to it. (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464.) It may be conceded that, in this case, denial of the mandatory injunction or delay in its enforcement until the expiration of the defendants’ lease, constitutes the denial of the only complete remedy which the plaintiffs could invoke for wrong done and the only complete protection from injury caused by continuance of the wrong. Even so, the court must weigh conflicting considerations of benefit to the plaintiffs and harm to the defendants which would follow from the grant of the drastic remedy for which the plaintiffs ask, and all the facts and circumstances which help to show what is just and right between the parties. The record and the findings disclose circumstances which justify the exercise of the court’s discretion in granting the partial relief formulated in the judgment. We have never held that in an equity action the court may not, after decision is rendered, annex a stay or other proviso to the judgment to which a party is entitled in accordance with the conclusions of law contained in the decision. No such question is now before us, for, in this case, the conclusions of law leave open for subsequent determination the provisions to be inserted in the judgment thereafter entered. There is no formulation of any provision for immediate restoration of the building. Indeed, in the plaintiffs’ proposed conclusions of law they asked *532 the court to decide not that they were entitled to a judgment directing immediate restoration, but “ that plaintiffs are entitled to judgment against the defendants for the sum of SI,107, representing the cost of restoring the demised premises as hereinabove set forth, besides costs and disbursements.” In each action the judgment should be affirmed, with costs, and the appeal from the order denying the motion to amend the judgment dismissed, without costs.