Frey Realty Co. v. Ten West 46th St. Corp.

While in the situation presented in this case the granting of injunctive relief was not appropriate and Special Term properly refused to enforce the restrictive covenant by way of injunction, nevertheless we think there should have been a determination as to the amount of damage sustained by plaintiff as the result of defendants’ refusal to observe the restrictive covenant which was unquestionably binding on them. Obviously plaintiff’s building was adversely affected by defendants’ acts. Denial of injunctive relief did not necessarily preclude plaintiff of its right to establish damages (Wattack Constr. Go. v. Smalwich Realty Corp., 201 App. Div. 133, 135). Accordingly, the judgment is unanimously modified by eliminating therefrom the provision that it is with prejudice to the institution by plaintiff of an action at law for damages ■and, as so modified affirmed, and the matter is remitted to Special Term for a trial on the issue of damage, with costs to the appellant to abide the event. Settle order on notice. Present — Peck, P. J., Cohn, Callahan, Botein and Rabin, JJ.