Opinion
Argued November 26, 1894
Decided December 11, 1894
Wm. E. Wyatt for appellant.
Emanuel J. Myers for respondent.
The defendant owned a building in the city of New York, and in May, 1892, he leased a portion thereof to Daniel J. Foley for a saloon. Foley took possession of the saloon and put certain personal property therein necessary for his business as a saloon keeper, and in July, 1892, he assigned his lease and conveyed his personal property to Jacob Wissman, who took possession. In October, 1892, he sold the property and assigned the lease to James J. McGinn. While McGinn was in possession of the saloon he borrowed $1,800 of the plaintiff, and as security for the loan gave it a mortgage upon the personal property in the saloon, and assigned to it the lease. McGinn remained in possession of the saloon and the property, and afterward assigned the lease and sold the property to John E. McCabe. The lease provided for a forfeiture thereof for default in the payment of the rent reserved and for re-entry by the landlord in case of such default. After the sale and assignment to McCabe, for default in the payment of the rent, the defendant took possession of the saloon, the personal property being therein, and at the commencement of this action he was in possession of the saloon, claiming to have such possession as owner thereof. Thereafter he gave the plaintiff notice to remove the personal property from the saloon, and that if it did not do so, he would remove it. It then commenced this action.
The complaint is very imperfectly and unskillfully drawn, and from the allegations therein contained it is not easy to determine upon what theory the plaintiff claims to maintain this action, and precisely what relief it may be entitled to have awarded. I will, however, assume that the action is for the redemption of the lease from the forfeiture, and that the complaint is adequate to enable the plaintiff to have relief that the rent in arrears be determined, and that upon payment thereof the possession of the saloon be awarded to it.
At the commencement of the action the plaintiff obtained a preliminary injunction restraining the defendant from removing the personal property covered by its mortgage from the saloon. That injunction, upon the application of the defendant, was vacated at the Special Term, but upon appeal by the plaintiff to the General Term the order of the Special Term was reversed and the injunction restraining the defendant from removing the property from the saloon was re-instated; and this appeal is from the order of the General Term.
The defendant being in the actual possession of the saloon, and claiming to be rightfully in possession as owner, cannot be removed therefrom by the plaintiff, except by the successful termination of this action in its favor; and the sole purpose of the injunction is to restrain him from removing the personal property from the saloon during the pendency of the action. During that time it cannot carry on the saloon or enjoy the good will thereof, or make any use whatever of the personal property contained therein. The sole purpose and effect of the injunction, if maintained, is to secure the storage of the personal property in the saloon during the pendency of the action. The following is a list of the personal property covered by the mortgage:
"One back and back bar with fixtures attached.
"One iron foot rail and hand rail attached.
"One ice box in store.
"One summer door.
"One six-pull ale pump and connections.
"All glassware and glasses.
"Four tables.
"Five chairs.
"One looking glass in back of store.
"Two brass beer taps and one mallet.
"One water closet and urinal.
"One clock.
"All demijohns, etc.
"And all other goods, chattels and fixtures on said premises not hereinbefore specifically mentioned, excepting stock in trade."
There is no precedent for such an injunction. The defendant does not threaten to destroy or injure the personal property, or to sell, dispose of or secrete it. He has simply given the plaintiff notice to remove it, and that if it does not remove it he will do so. In pursuance of that notice it can go to the saloon and take its property and keep it, and in case of success in this action it can again place the same property in the saloon and enjoy it in connection with its lease. If it does not wish to take the property out of the saloon it can wait until the defendant removes it and then take it and care for it. If it does not choose to take the property it can leave it, and if the defendant injures or destroys it, so far as we can see, there being no question as to the defendant's pecuniary ability, it would have a complete remedy at law for the value of the property or for injury thereto. The property is of such a character that it is manifest that it could be easily replaced if it were lost or destroyed, and in no aspect of the case does the plaintiff need the interference of a court of equity by an injunction for his protection.
We are, therefore, of opinion that the order of the General Term should be reversed and that of the Special Term affirmed, with costs in the Supreme Court and in this court.
All concur.
Ordered accordingly.