Summary
In Levy v. Blackmore, 67 Atl. Rep. 1022, cited by complainant, this court interfered to protect a tenant's right to peaceable possession of demised premises which was disturbed by the landlord cutting off the gas under a claim of forfeiture for breach of a covenant.
Summary of this case from Uppercu Cadillac Corp. v. 536 Broad St. Corp.Opinion
08-30-1907
LEVY v. BLACKMORE.
Edward Schoen, for complainant. David T. Howell, for defendant.
Edward Schoen, for complainant. David T. Howell, for defendant.
On October 23, 1906, Blackmore, the defendant, made a written lease to Levy, the complainant, for certain rooms situated on the third floor of a building not described in the lease itself, but which appears by the pleadings to be No. 60 Academy street, in the city of Newark, for one year from November 1, 1906, with the privilege of another year's extension, and upon other terms set out in the writing, most of which are not important to the controversy. The lease contains this covenant: "And the said party of the second part do hereby promise and agree that I will not relet or underlet the whole or any part or said premises, nor assign this lease, nor use or permit any part thereof to be used for any other purpose than enameling and painting jewelry without the written consent of the party of the first part, his heirs, assigns, agents or attorneys under the penalty of forfeiture and damages." The complainant entered the premises under the lease about November, 1906, and is now in possession, and is using them, as he claims, as a workshop for "enameling and painting jewelry." The defendant claims that he is now and always has been engaged in something more than that; that he is, in addition, polishing and gilding jewelry, and for that purpose he uses machines which make a noise, vibrate the building, and annoy the other tenants. The complainant installed in the demised premises such machinery and trade fixtures as he had used in his former place of business on Market street. This included a baking oven and some polishing or lapping or matting machines which were operated by a dynamo. These machines were set upon work benches, the dynamo on the floor, and they were run some portion of nearly every day, from half an hour to three hours. The baking oven was constructed so as to be heated by gas, and to accomplish this the tenant was obliged to install a gas pipe. This was done by conducting the pipe up the elevator shaft, a location which seems to have been directed by the landlord himself; at least, it is so stated, and is not denied by him. The landlord appears to have complained of the noise made by the operation of the tenant's machinery soon after the tenant had moved in, but he took no steps to obviate the difficulty until a few days before the bill was filed, when he disconnected the gas pipe which furnished the gas used to heat the oven, the operation of which appears to be quite noiseless, and so brought the tenant's business to a "standstill" for 12 days, as one of the witnesses said. There was no interference with the lines which carried the electric current into the premises to communicate the power to the machines which seem to have created all the noise and vibration complained of. The bill seeks to restrain the landlord from further destroying the tenant's property in the premises, from interfering with or in any wise obstructing the means whereby he acquires power for the operation of the machinery necessary in the conduct of his business, and from interfering with or obstructing the tenant in reinstalling or repairing the means by which he obtains power, and from in any wise obstructing the tenant in the peaceable, quiet, and beneficial enjoyment of the premises. The landlord answers, justifying his course of action by claiming that the tenant was using the premises for a purpose differentfrom that covenanted for; that, instead of confining his operations to enameling and painting jewelry, he was engaged in plating and polishing jewelry, which is a different business; and that this part of the work that was done on the machines created the disturbance. He also files a cross-bill, in which he alleges that the tenant's installation of machinery and the gas pipe in the elevator shaft is a violation of the covenant in question, and that the lease is thereby wholly broken, and he prays that it may be set aside and for nothing holden.
At the time the lease was made, the tenant was occupying premises on Market street. His son had begun the business, and on his death the father took it up and carried it on. He is now 80 years of age, and, being a somewhat recent emigrant to this country, he speaks and understands the English language quite imperfectly. Before the lease was made, he called to see the landlord, whom he invited to visit the Market street shop to see his plant, and to learn the kind of business he was carrying on. The landlord went in person to this place, and was there met by a woman in charge, who showed him the whole plant and machinery, all of which, and no more, was removed to and installed in the Academy street rooms. This the landlord practically admits. The landlord then himself prepared the lease in question, and presented it to the tenant for signature. The tenant within the next six weeks moved into the premises, and installed his machinery and gas pipe, all at an expense of about $200, and all with the knowledge, approbation, and direction of the landlord. The landlord claims that he had a right to interfere with the tenant's fixtures because the tenant was violating the covenant.
Considerable testimony was taken to show what the business was which was included in the words "enameling and painting jewelry." It was contended, on behalf of the landlord, that enameling and painting jewelry were operations that were conducted wholly by hand, without the use of any machinery what ever, except a baking oven, which made no noise and no vibration. It was quite as strongly stated by witnesses for the tenant that the business included such gilding and polishing as was required to finish up the work after the painting and enameling had been accomplished, and I am inclined to take the view of the tenant as to that part of the case. The circumstances under which the lease was drawn and executed throw light on the question. The landlord inspected the tenant's plant in Market street, and he bad an opportunity to ascertain just exactly what the business was and how it was to be carried on, and, indeed, as I understand the testimony, saw all the machinery installed there which was afterwards installed in his own building. This he does not specifically deny. Having seen this, he drew the lease and obtained its execution by a very aged man who seems to have understood the English language but little, and who undoubtedly understood that he was to be permitted to carry on the same business that he had carried on in Market street. But, even conceding the position of the landlord, and conceding that the tenant did violate the covenant, and conceding, still further, that the violation operated as a forfeiture, and that due notice was given thereof and everything done by the landlord to conserve what he thought were his rights, it still appears that the landlord has accepted the rent from the beginning of the lease down to the present time. This operates as a waiver of any forfeiture which may have been incurred during that period because it sufficiently appears that the rent was accepted after the landlord had knowledge of the facts which he now claims operates as a forfeiture. Conger v. Duryee, 90 N. Y. 594; Taylor on L. & T. § 497; Thropp v. Field, 26 N. J. Eq. 82.
I conclude, therefore, that the tenant is entitled to be protected in the quiet enjoyment of the premises leased by him, and that an injunction should go to prevent interference by the landlord with the tenant's rights.
This view of the case makes it necessary to dismiss the cross-bill. I will advise a decree in accordance with these views.