Fleisch v. Schnaier

Ingraham, J.: The plaintiff leased to the defendant the. front and back parlors of premises Eo. 664 Lexington avenue, to be Used by the defendant, the back parlor as a dental, office and the front parlor as a waiting and reception room, the plaintiff further agreeing that she would ■ not rent the basement to any tenant displaying signs, showcases or ■ articles of merchandise on the outside of the premises. This lease was to commence .on October 1, 1905, and was for two years, the ■ tenant to have the privilege of renewing the lease for three years, and for this the tenant was to pay fifty dollars a inohth. The conn plaint alleges. that the. defendant, in the month of March, 1907, threatened and told the plaintiff that he was about to sublet said' . parlor to negroes, to Chinamen, to the most, undesirable person or persons he could find, and put them in possession and occupancy • thereof at the lowest rent. The defendant does not seem to have answered any of these affidavits, but. it is quite clear that -there was ' no justification for an injunction. It is well settled that in the absence of an express restriction, either by contract or by statute, the tenant has a right to assign his lease or. sublet the premises. (Eten v. Luyster, 60 N. Y. 252; 18 Am. & Eng. Ency. of Law [2d ed.], 659.) . To entitle the plaintiff to an injunction it must appear from the-complaint that the plaintiff demands and is entitled to judgment against the defendant restraining the commission or continuance of an act, the commission or continuance of which during the pendency of the action will produce'injury to the plaintiff. ■ (Code Civ. Proc. § 603.) • . ’ As. it does not appear from this complaint that the plaintiff would be entitled toa judgment restraining the defendant from subletting the premises, a temporary injunction cannot be granted. .- It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars .costs. . ...-.< Laughlin, Clarke,' Scott and Lambert, JJ., concurred. Ordér reversed, with, ten dollars costs and disbursements, and ■ * motion denied, with ten dollars costs.