Proskey v. Cumberland Realty Co.

Freedman, J. This is a motion for an injunction pendente lite, to restrain the defendant herein from destroying, tearing down or removing the building known as the “ Cumberland,” an apartment-house, and tearing down, destroying or removing the [51] stairways and necessary means of ingress thereto and egress' therefrom, and from undermining the foundations, walls or supj ports of said building and doing such other acts as will render the building unsafe or uninhabitable. The premises are located at the intersection of Twenty-second street, Broadway and Fifth avenue in this city, and the plaintiff herein leased, on September 29, 1900, an apartment therein known as No. 21, consisting of two rooms situated on the sixth floor on the east side of the building, for the term of one year. The defendant herein acquired the ownership of the premises bounded by Broadway, Twenty-second street and Fifth avenue about April 30, 1901, which plot includes the Cumberland, and proposes to erect thereon a modem fireproof structure. Under his lease, the plaintiff had a right of ingress to and egress from his rooms at all reasonable hours, the use of the fixtures in such apartment, the water supply and the elevator service. These rights were admitted and observed by the former owner, and were recognized and a promise made to respect them by the defendant, as appears from the contents of two letters written to the plaintiff under dates of March 4 and March 11,1901, respectively, by one C. E. Harrell, whose authority to write such letters for and on behalf of the defendant is not disputed, and who states, among other things, that “ if anyone wishes to remain in the building after that period (May 1st, 1901) the elevator will be kept running and all the conditions of the leases legally complied with.” No charge is made that the plaintiff has not strictly complied with the terms and conditions of the lease upon his part. Notwithstanding these facts, the defendant has, in the progress of its work upon its premises, began the tearing down of this apartment-house, has already tom down the stairway leading from the first to the second story, refuses to continue the elevator service and has, in other particulars, interfered and threatens to continue to interfere with the rights granted the plaintiff under and by virtue of his lease, its principal excuse being that it is engaged in an enterprise that will involve over $2,000,000; that any delay in the prosecution of the work in the tearing down of the buildings upon the premises and the erection of new buildings thereon will result in a large pecuniary loss; [52] that the balance of disadvantage to the plaintiff from his having “ to move ont of his apartment five months before the expiration of his lease is comparatively insignificant, and that the defendant stands ready to amply compensate him for such disadvantage.” It does not appear, in fact the contrary appears, that the work of demolition has so far progressed as to render an injunction futile. The defendant purchased the property in question at private sale, and with full knowledge of existing conditions and subject to the rights of persons in possession. It is engaged in the prosecution of a private enterprise for private profit. It contends that the plaintiff has an adequate remedy at law in an action for damages; that an injunction should not be granted unless irreparable damage is threatened, or that the defendant is shown to be irresponsible and that money is an adequate compensation. The decisions cited by the defendant do not, however, uphold its contention. Under the facts and circumstances as disclosed by the affidavits, submitted on this motion, I am not prepared to admit that the damages that might be sustained by the plaintiff, should the methods taken by the defendant to evict him be successful, as they would be if continued, could be proven or recovered in a common-law action. Neither am I willing to subscribe to such methods or the practice sought to be established by the conduct of the defendant herein. I much prefer the doctrine enunciated by Mr. Justice Beekman in the case (not reported) of Boitel v. Morton, where he, under a somewhat similar state of facts, says; “ that the latter (the defendant) is clearly within his right, both legal and equitable, in insisting upon retaining his tenancy during the continuance of his term, notwithstanding the exigencies which apparently make it so important to the defendant to obtain possession of the premises. To assume any other position in a case of this kind would be to subject every lessee to the will _of an old or new owner who might desire, during the continuance of his lease, to destroy the leased building for the purpose of erecting a new one.” The injunction should be continued so far as to prohibit the defendant from interfering with the plaintiff in his rights of ingress and egress to and from his apartment, from discontinuing the elevator service, for the use of the plaintiff at reasonablé hours and times, from interfering with the gas o~ water-pipes if [53] the effect thereof will be to deprive the plaintiff of his supply, and from tearing down or removing any portion of the said Cumberland building in any way that will materially interfere with the plaintiff’s right to the enjoyment of his rooms therein, or that will render the same untenantable. Ordered accordingly.