
    Frederick Loeser, App’lt, v. Heman Liebmann et al., Resp’ts.
    
      (Supreme Oourl, General Term, Second Department,
    
    
      Filed May 11, 1891.)
    
    1. Landlord and tenant—Lease—Fixtures.
    A lease of store property contained a provision “ that all improvements placed in said building by the lessees, viz.: elevators, boilers, heating apparatus, &c., shall be deemed fixtures not to be removed.” The lessees had placed in the premises a small engine, a duplex Worthington pump, and a pressure tank to operate "an electrical apparatus for lighting their store and adjoining buildings and to operate an elevator in an adjoining building. Held, that the word “improvements” was limited by the videlicet clause following, and the “&c.” did not enlarge its scope further than to clearly indicate that it was the intention of the parties to include within its terms articles directly connected with those specified, and that none of the articles in question were so attached to the building as to be improvements thereto.
    2. Same.
    By another lease, made for eleven years, it was agreed that all fixtures, counters, shelving, boilers, machinery, elevators, lighting and heating apparatus in the building at the expiration of the lease, should be the property of the lessees, in case they should be called upon to erect certain party walls; but, if not, then such fixtures, etc., should become the property of the lessor at such expiration. There were no limitations as to sub-letting or assigning, or as to the character of the business to be carried on. Held, that the lease should not be construed as meaning that the fixtures should remain in the building until the expiration of the lease, but that it limits the articles which shall become plaintiff’s property, in case he shall not demand the erection of the party walls, “ to those in said building at the expiration of the lease.”
    3. Same—Injunction.
    All the articles in question were not fixtures but personal chattels, easily removed without injury to the buildings, and their exact money value could be readily determined. Held, that in such a case, a court of equity would riot interfere by injunction, as there was no proof that the threatened injury would be destructive to the freehold, or produce irreparable injury.
    
      Appeal from judgment of special term of Kings county, dismissing plaintiff’s complaint on the merits and from orders granting defendants additional allowance amounting to $250 in action No. 1 and $50 in action No. 2.
    The two actions were tried together. The property in dispute was of the respective values of $15,000 and $1,000.
    
      Wilson & Wallis, for app’lt; Freling H. Smith, for resp’ts.
   Dykman, J.

—These two actions, which were tried together, were brought to restrain defendants from removing certain articles of personal property from two stores on Tillary street in the city of Brooklyn. The complaints were dismissed on the merits at the trial and these appeals are from the judgments of dismissal and from the orders granting in each case an additional allowance.

It appears that on May 1, 1880, Ernilie Loeser leased to the co-partnership firm of Frederick Loeser & Co. the premises known as Nos. 14 and 16 Tillary street for ten years from that date. Both the plaintiff and the defendants, Herman and Louis Liebmann, were members of that firm and continued to be until February, 1887. In May, 1884, the plaintiff became the owner of the premises. The lease contains a provision “ that all improvements placed in said buildings by the lessees, viz.: elevators, boilers, heating apparatus, etc., shall be deemed fixtures not to be removed.”

The lessees had placed in said premises a small engine, a duplex Worthington pump, and a pressure tank, for the purpose of operating an electrical apparatus for lighting their entire dry goods •establishment, which consisted of the above and several other adjoining and neighboring buildings, and for operating passenger elevators in an adjoining building. As the lease was about expiring they proposed to remove these three articles, and the plaintiff thereupon brought one of the actions, claiming that under the above •quoted provisions of the lease they have become his property.

Hnless they come within the terms of the provisions above quoted, it is clear the defendants have the right to remove them. The only improvements which the plaintiff is entitled to claim are elevators, boilers and heating apparatus, and those things so connected with, as to form a part of them. The word “ improvements ” is thus limited by the videlicet clause which follows. The office and purpose of such clause is to define and particularize that which before is general. Gleason v. McVickar, 7 Cow., 42.

The “ etc.” at the end of this clause does not enlarge its scope further than to clearly indicate that it was the intention of the parties to include within its terms articles directly connected with those specified. Lathers v. Keogh, 109 N. Y., 583 ; 16 N. Y. State Rep., 178.

But the evidence shows, what is tolerably obvious without proof, that none of the articles in question are here specified or so connected with as to form part of them. None of them are so attached to the building as to become fixtures or in any proper sense improvements thereto.

The other action, which is designated number 1, grows out of certain provisions in a lease now owned by defendant of the adjoining premises, known as Nos. 10 and 12 Tillary street, made by plaintiff to said firm for the term of eleven years from May 1, 1884; these provisions are as follows:

“And it is further mutually agreed between the parties hereto that all fixtures, counters, shelving, boilers, machinery, elevators, lighting and heating apparatus in said buildings at the expiration of this lease are to become the property of the lessees, in case the lessees shall be called upon to erect the party walls hereinbefore contemplated to be built, but in case the lessor shall not demand the erection of said party walls, then the said fixtures, counters, shelving, boilers, elevators, lighting and heating apparatus to become the property of the lessor at such expiration.”

The plaintiff claims that the defendants threatened to remove these fixtures from the building and insists that they have no right to remove any of them until the end of the lease, and then only in the event of his electing to require them to erect the party walls referred to, although more than five years of the term remain unexpired.

There is no limitation in the lease as to subletting or assigning the lease, nor as to the character of the business which shall be carried on, excepting as to business deemed extra hazardous on account of fire. In view of these facts and the length of the term, the language of the clause in question should be very clear, to justify the construction that trade fixtures once placed in the building, should remain there for eleven years or until the expiration of the lease, and thus practically deprive the defendants of their right to change the nature of their business, or to sublet the premises, and, in short, in a great measure deprive them of their beneficial enjoyment. The language of this clause will not bear such an interpretation. It limits the articles which shall become plaintiff’s property in case he shall not demand the erection of the party walls, to those “in said building at the expiration of the lease.” This is plain and definite, and accords with the evident intention of the parties and the other provisions of the lease. If, however, there is doubt as to the meaning of the words used they should, under well-settled rules, be construed most favorably to the lessees., Windsor Hotel Co. v. Hawk, 49 How. Pr., 257; Clifford v. Presbyterian Society, 56 Barb., 114; McAdam on Landlord and Tenant, p. 182.

But we think the plain intention of the parties was, and the correct interpretation of this clause is, to leave the lessees freedom of use of the demised premises, and of the trade fixtures they shall place therein during the term of the lease.

There are various other reasons urged by the respondents, which lead to the affirmance of the judgment in both these actions. It is a well and long-established principle of equity, that unless the threatened injury will be irreparable, the court will leave the party to his remedy at law. R. R. Co. v. R. R. Co., 86 N. Y., 107; Jerome v. Ross, 7 John. Ch., 315.

It appeared on the trial by undisputed evidence, and was so found by the court, that all the articles in question are not fixtures but personal chattels, easily removed without injury to the buildings, and their exact money value can be readily determined. In such case a court of equity will not interfere. Thompson v. Matthews, 2 Edw. Ch., 212; Balcom v. Julien, 22 How. Pr., 349.

In order to entitle the plaintiff to injunctive relief, it was incumbent upon him to prove that the threatened injury would be destructive to the freehold or produce irreparable injury, Ewell on Fixtures, 402 ; Taylor’s Landlord & Tenant, § 695, neither of which he has done, but, as we have seen, the evidence discloses a contrary state of facts. Furthermore, it appears that the defendants had not intended or threatened to remove any of the trade fixtures from 10 and 12 Tillary street excepting an elevator, which would be rendered useless and walled up by the construction of the party wall which the plaintiff required to be erected pursuant to the provisions of the lease of 1880.

Whether this wall is the only one provided for in the lease of 1884, as to which considerable evidence was given at the trial, it is unnecessary now to determine, as the above views lead to an affirmance of the judgment in each action.

Ho reason is shown for the reversal of the orders granting the allowances. The title to the property in dispute was in issue and the amounts awarded were reasonable.

The judgments and orders appealed from should be affirmed, with costs.

Barnard, P. J., concurs.  