
    The Hammerstein Opera Company, Appellant, v. David Belasco and Universal Film Company, Respondents.
    First Department,
    March 6, 1914.
    Injunction — suit to enjoin exhibition of moving pictures, under provisions of lease — injunction pendente lite.
    Where, in a suit to enjoin the exhibition of moving pictures in a theatre occupied by the defendant under a lease providing that the premises are to be used and occupied as a first-class theatre, and are not to be used for any business purpose deemed disreputable or extra hazardous on account of fire, the complaint alleges that the moving pictures which are being exhibited by the defendant are neither a first-class nor any other kind of a play, and that their exhibition renders the premises extra hazardous on account of fire, and these allegations are supported by affidavits, a motion for an injunction pendente lite should be granted.
    Appeal by the plaintiff, The Hammerstein Opera Company, from 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 19th day of January, 1914, denying plaintiff’s motion for an injunction pendente lite.
    
    
      Gerald B. Rosenheim, for the appellant.
    
      M. Angelo Elias, for the respondents.
   McLaughlin, J.:

This action was brought to enjoin the defendants from giving exhibitions of moving pictures in the Republic Theatre in the city of New York as being contrary to the terms .of a lease under which the theatre was occupied. After the action was commenced the plaintiff made a motion for an injunction pendente lite. The motion was denied and it appeals.

The plaintiff’s assignor leased to the defendant Belasco the theatre in question for a period of ten years, commencing May 1, 1902, at an annual rental of $30,000, plus a certain percentage of the gross receipts. The lease has since been renewed for an additional period of five years. It expressly provided that the premises were “ to be used and occupied by the said tenant as a first-class theatre,” and that the tenant would not use them or permit them'to be used “for any business purpose deemed disreputable or extra hazardous on account of fire under penalty of damages and forfeiture.” From the papers used upon 'the motion it appears that up to December 6, 1913, Belasco used the theatre only for the purpose of producing high-class plays, for which'admission tickets were sold from fifty cents to two dollars; that on the day mentioned, however, he made an agreement with the Universal Film Company whereby the latter was given a license to exhibit in the theatre moving pictures entitled Traffic in Souls;” and that under this license the film company since that time has been and now is exhibiting the pictures, for which an admission is charged at the rate of twenty-five cents to one dollar.

The complaint alleges that the moving pictures which are being exhibited are neither a first-class nor any other kind of a play, and for that reason the theatre is being used for a purpose other than that stipulated in the lease; and in addition thereto that the exhibition of. such pictures also violates the other clause in the lease above quoted which renders the premises ‘‘ extra hazardous on account of fire.” These allegations are supported by affidavits which were used upon the motion.

In passing upon the question presented by the appeal it is unnecessary to determine whether the premises are being occupied for a purpose other than a first-class theatre. That must be determined upon the trial of the issues. It is sufficient to say that there is a great conflict in the papers upon that subject. If the facts set out in the affidavits presented by the plaintiff are true, then the premises are not being used as a first-class theatre, and if such use is continued the value of the property will be greatly diminished. Our attention is called to the fact that plaintiff believes such will be the result since he has offered to cancel the lease rather than to have the theatre so occupied. Not only this, but the fact is not disputed but what the use to which the theatre is now being put is extra hazardous on account of fire. In answer to this the defendants state they have complied with all the requirements of the municipal authorities, but if so the present use of the theatre would seem to be a violation of the clause with reference to an increased hazard on account of fire.

While it appears that the plaintiff has accepted rent which has accrued since the new use of the premises commenced, it did not thereby consent to such use, because it then and since has insisted that the defendant was using the theatre in violation of the lease.

Without expressing any opinion upon the merits of the controversy, we think a - proper case was presented in which an injunction should have been granted pending the action.

The order appealed from is reversed, with ten dollars costs and disbursements, and the motion for an injunction granted, with ten dollars costs.

Ingraham, P. J., Lattghlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  