Brooklyn Properties Inc. v. Cargo Packers Inc. , 1 A.D.2d 1040 ( 1956 )

In an action by a lessor against the lessee, the judgment entered after trial enjoins the lessee from committing specific acts of waste upon the property; directs the lessee to remove three structures from the premises; provides for the assessment of damages, and grant: other relief. Judgment modified, on the law and as an exercise of discretion, by striking therefrom the third and fourth decretal paragraphs. As so modified, judgment affirmed, without costs. The findings of fact are affirmed. Conclusions of law inconsistent herewith are reversed. The three structures are a concrete ramp, a paved walk, and a shed or storage building almost completed. They do not constitute waste of the leased property but are improvements thereon which do not change the nature or character of the premises and are reasonably necessary to the operation of the lessee’s business. Nevertheless, their construction is in violation of the lease agreement which provides that no alterations or improvements may be made by the lessee without the lessor’s written consent, and the lessor is entitled to a remedy for the violation. Two of the structures having been completed, and the third nearly completed, the court in equity should not grant a mandatory injunction for the immediate restoration of the premises to their original condition, where this will result in great injury to the lessee and will be of no practical benefit to the lessor. Under the facts, the relief of damages, which under the judgment may be assessed upon five days’ notice, is adequate. (Engle v. Thorn, 3 Duer 15. ) Beldoek, Acting P. J., Ughetta and Hallinan, JJ., concur; Murphy, J., dissents and votes to affirm, without modification, with the following memorandum: The lessee deliberately and defiantly violated the terms of the lease by making additions to the property without the written consent and approval of the lessor, as required by the lease. The Official Referee so found after hearing all the testimony, and the record substantiates his findings.