Fleisch v. Schnaier

Full title: ADELAIDE FLEISCH, Respondent, v . JACQUES SCHNAIER, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 7, 1907

119 App. Div. 815 (N.Y. App. Div. 1907)

104 N.Y.S. 921

Opinion

June 7, 1907.

Milton Mayer, for the appellant.

William A. Keeler, for the respondent.

INGRAHAM, J.:

The plaintiff leased to the defendant the front and back parlors of premises No. 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 month. The complaint 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 to a 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.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.