Gillian v. Norton

Monell, J. The ground or cause of complaint against the defendants Norton and Studley, is a breach of their covenant not to underlet without the permission of the lessors, and not to use the premises for a purpose deemed extra hazardous on account of fire. The covenant not to under-let, was broken by the letting of one of the buildings to Leach Brothers, and of the other to Disbrow. The other covenant was broken by the use the premises let to Disbrow were put to by him, which, it is alleged, is a use deemed extra hazardous. A lessor cannot have relief in • equity for a breach of a covenant not to underlet. If he has the right, by the terms of the lease, or otherwise, to re-enter, he must proceed at law ; or he may waive the right to enter, and recover his daynages. Equity will not interfere "and give redress where the remedies are adequate at law ; and in this respect' the union of law and equity by the Code, has not changed the' rule. AH the plaintiff’s remedies for a breach of the covenant not to underlet, are, therefore, at law. But it is claimed that the other covenant is one of which a court of equity will take cognizance, and will enjoin a continuing breach, to avoid multiplicity of actions. The covenant is not to use the premises for a purpose deemed extra hazardous on account of fire,, and is substantially the same as a covenant not to use the premises for any purpose or business other than such as is designated in the lease. This court has frequently restrained a lessee from using demised premises in opposition to his covenant. (Howard [376] agt. Ellis, 4 Sandf. S. C. R. 369; Dodge agt. Lambert, 2 Bosw. 570 ; see also Stewart agt. Winter, 4 Sandf. ch. 587.) And a mere recital in the lease of the purpose for which the premises are let, has been held to constitute a covenant. (De Forrest agt. Byrne, 1 Hilt. 43.) Norton and Studley having underlet, in violation of their covenant, are responsible for .the acts of their tenant; and, therefore, the use of the premises by such tenant, for a purpose deemed extra hazardous, was a violation of their covenant, a continuance of which violation a court of equity may interpose to prevent, and not only to prevent, but to compensate in damages for any injury sustained; for it is a settled principle that, a court of equity having acquired jurisdiction of the subject matter of the action, may make complete reparation to the parties. (Story’s Eq. §§ 796, 797.) It being competent for the court in this case, to restrain the continued violation of the lessees’ covenant, it may also assess such damages as the lessor has sustained, and give judgment therefor. The objection that the facts stated do not constitute a cause of action, is not, therefore, in my opinion, well taken. The remaining ground of demurrer is, that there is an improper joinder of actions. The alleged misjoinder of actions against the defendants Norton and Studley, I have already disposed of, by showing thdt a lessor may obtain relief in equity, restraining a continued violation of a covenant, and also for damages. But it is claimed that the relief demanded against the under-tenants, will require a different and separate judgment, and that a cause of action which will authorize a judgment against them, cannot be united with a cause of action against their immediate landlord. To make the injunction effectual, it was necessary to enjoin all persons engaged in violating the covenant; not only the lessees Norton and Studley, but all others who, under them, by their authority, consent or direction, were breaking their •covenant; and the judgment, if the action shall be sustained, will perpetually restrain each and all the defendants alike. [377] It was necessary, therefore, to prosecute not only the lessees of the plaintiff, but all persons holding under them; otherwise the latter would be under no restraint. So far, then, as concerns the equitable relief, the action is properly brought against the lessees and their tenants, and there is not, in my opinion, any misjoinder of actions, There is, indeed, but one causó of action, namely, for the breach of the lessees’ covenant, and all the persons made defendants were necessary parties to the plaintiff’s obtaining adequate relief in the premises. It is suggested, however, that there cannot be a joint judgment for damages against all the defendants. That is probably so. There is no privity of contract between the under-tenants and the plaintiff, and there cannot be a recovery against them of damages for the breach of the lessees’ contract. But I cannot see any difficulty in pronouncing separate judgments. The power to do so is in express terms given by the Code (§§ 118, 274), and is constantly exercised by the courts even in actions at law. Taking the case then as presented by the complaint, it is this: The defendants Norton and Studley, have broken their agreement with the plaintiff, by actually or tacitly permitting the premises to be used for a purpose deemed extra hazardous, whereby the plaintiff has sustained damage. The active agent in causing or making the breach is the defendant Disbrow, and we are asked to restrain all the defendants. In respect to uniting Norton and Studley and Disbrow in the same action, I see no objection. It may be, however, that a cause of action is not shown against the other defendants. But it is not necessary to examine that question, as it is not made a ground of demurrer. I think the plaintiff must have judgment upon the demurrer, with costs. The defendants may have leave to withdraw their demurrer, and answer in twenty days, on payment of the costs.