
    James A. Benedict and John B. Copp, Appellants, v. International Banking Corporation and Others, Respondents. ;
    
      Injunction —right of a tenant of part of a building teprevent the owner from taking it down.
    
    The injunctive relief which may be granted pending the trial of an action, brought by a tenant of. the front half of the first floor of a building, after the owner has begun to tear the building down, to enjoin the owner from interfering with his quiet enjoyment of the premises, considered.
    Appeal by the plaintiffs* James A. Benedict and another, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of October, 1903, as modifies an injunction order theretofore granted against the defendants as follows: “ So as to allow and authorize the removal by the defendants, or any of them, of that portion of the building No. 62 Wall Street, which is.above the premises occupied by the plaintiffs, in such a way as will not interfere unreasonably with the plaintiffs’ right to quiet enjoyment of said premises so occupied,” and from so much of. said order as allows and authorizes the removal of the roof and any portion of the building, No. 62 Wall street, or any alteration in the character and use of said building, and from so. much of said order as relieves the defendants from the repairs and restorations required by the said injunction order and an order bearing date July 28, 1903, and entered in said clerk’s office, and from so much of said order as vacates and sets aside in part the injunction theretofore granted.
    
      W. P. Prentice, for the appellants.
    
      Willard Parker Butler, for the respondents.
   O'Brien, J.:

The plaintiffs are the only remaining tenants of the premises known as No. 62 Wall street, which were purchased by the defendant, “ Sixty Wall Street,” a corporation, with the intention of including it, with certain other adjacent property, in a plan to construct a large building. The lease under which the plaintiffs hold the front half of the first floor of the building, designated 62 Wall street, contains a covenant for quiet enjoyment and is fora term of three years from the 1st day of May, 1902, with the right of renewal for the further term of two years from the 1st day. of May, 1905.

With respect to the intentions of the building company, the complaint alleges that the defendants “ have already removed the greater part of the structure No. 60 Wall Street aforesaid, and have broken through the westerly wall of No. 62 Wall Street-on several stories and exposed said stories to the elements and the upper stories of said No. 62 Wall Street/are now encumbered by bricks and rubbish, and in the case of the third and fourth stories by water, and are already untenantable and the defendants above named have broken said skylight and exposed plaintiffs’ said premises to the elements, and by the acts aforesaid have endangered the safety and tenantabifity of the premises occupied by the plaintiffs.” The relief sought is to enjoin the defendants from interfering with the quiet enjoyment by the plaintiffs of the leased premises.

The plaintiffs obtained an injunction restraining certain alleged, trespasses of the defendants in an order, dated July 17, 1903, to show cause why such in junction should not be continued during the pendency of the suit. Its material provisions were as follows: “ Ordered that the defendants show cause * * * why the defendants * * * should not, during the pendency, of this action and until the final determination thereof, be enjoined and restrained from removing the roof and walls of the premises No. 62 Wall Street, or any part thereof, and from leaving the floors and ceilings and skylights thereof, and especially the ceiling and skylights of the main floor thereof, now occupied by plaintiffs, and plaintiffs’ said premises exposed in any manner to the elements or to damage by water or otherwise, and from obstructing the light, air or access of plaintiffs of and to plaintiffs’ said premises, and from interfering in any way with the quiet and peaceable occupation, possession and enjoyment of said premises by the plaintiffs, and from refusing to restore said premises to the condition in which they were on and prior to the tenth day of July, 1903, and why the plaintiffs should not have such other and further relief as may be just in the premises ; and, * * Ordered, that the defendants * * *' be enjoined as above until the hearing and determination of this motion.”

The hearing being had on such order to show cause, the injunction therein contained was modified by order dated July 28, 1903, as follows: “ Ordered that the temporary injunction * * * is hereby modified in such manner as to permit and authorize the defendants to take down and remove the rear building now on the premises No. 62 Wall Street up to the rear wall of the office occupied by the plaintiffs, upon condition that the defendants shall previously construct, and deliver possession thereof to plaintiffs of safe, adequate and convenient closets and toilet facilities, and shall at all times protect the plaintiffs’ skylight and the light therefrom, and shall protect the plaintiffs’ premises and plaintiffs from any injury due to such removal.”

Subsequently, upon an application to further modify the original injunction order, a modification was granted in the following particulars, in an order dated September 30,1903, “ so as to allow and authorize the removal, by the defendants, or any of them, of that portion of the building No. 62 Wall Street, which is above the premises occupied by the plaintiffs, in such a way as will not interfere unreasonably with the plaintiffs’ right to quiet enjoyment of said premises so occupied and so that the roof of that portion of the building No. 62 Wall Street, which is above the premises occupied by the plaintiffs, shall not be removed or the plaintiffs’ premises exposed until there has been placed over said premises so occupied by them, in a way that will not unreasonably interfere with their right of quiet enjoyment, a suitable roof that will afford ample protection from the weather, and so that the defendants shall not be required to restore the building, No. 62 Wall Street, to the condition in which it was on and prior to the 10th day of July, 1903.” It is from this latter order that the plaintiffs appeal.

There is no serious dispute as to what were the plaintiffs’ rights under the lease. Instead, however, of the injunction order which has been appealed from protecting these rights, it has in terms been framed so as to permit the defendants to proceed with their building operations in such manner as they think proper, provided they do not “ interfere unreasonably with the plaintiffs’ right to quiet enjoyment.” The order, therefore, does not protect the plaintiffs but it has left the determination of what is an unreasonable interference with the plaintiffs’ rights, as lessees, practically with the defendants. Without in detail enumerating their rights, we think it clear, for instance, that the plaintiffs are entitled to have the floor above them, which served as a roof, together with the skylight from which they derived light,- remain undisturbed during the pendency of the action. ■ We think, therefore, that in the modification which was first made of the original injunction order, and which permittéd the defendants to take down and remove the rear building up to the wall of the defendants’ office, upon condition that the defendants should give conveniences equal to those which the plaintiffs had in such rear building, and required the defendants to protect the plaintiffs’ skylight and premises from injury due to such removal, the court went as far as it was justified until a trial'could be had; and that the subsequent modification, which permitted the defendants to proceed, to any extent that they might think proper and that they might determine would not unreasonably interfere "with the plaintiffs’ quiet enjoyment, should not have been made.

The order appealed from is accordingly reversed, with ten doEars costs and disbursements.

Ingraham, J., concurred.

Van Brunt, P. J.:

We concur in the result. We do not think that any modification of the original order should have been made. The plaintiffs were entitled to that which they had contracted to get, and nothing else; and nobody had the right to say that they shall take something else because in their opinion it is just as good.

McLaughlin and Hatch, JJ., concurred.

Order reversed, with ten doEars costs and. disbursements.  