
    Frank N. Freeman and Eliza J. Freeman, Individually and as Executors, etc., of Nelson H. Freeman, Deceased, Appellants, v. United States Talc Company, Respondent.
    Third Department,
    June 27, 1912.
    Landlord and tenant —action to restrain lessee of mine from removing structures --- lease construed—temporary injunction—affidavits.
    In an action to restrain the lessees of a talc mine from removing timbers, tracks, supports and other structures therefrom, it appeared that the lease provided that the lessees upon the termination of the lease should have the right “to take and remove any and all braidings, machinery and tools of whatsoever nature, they may have on said premises, or may have put thereon,”but that the said property “shall be left in a good and workmanlike condition.” The plaintiff’s papers showed that to remove the staircases, tracks and supports would endanger the mine and greatly impair its value. The affidavits also showed the statements of defendants’ workmen that they had been instructed to remove the timbers, tracks, etc.
    
      Held, that an injunction should be granted restraining the defendants from interfering with such timbers, tracks, ■ supports, etc., during the pendency of the action;
    That the question as to whether the lease required certain particular structures should be allowed to remain, should be left for determination at trial;
    That plaintiff’s affidavits showing the statements of defendants’ workmen that they had been instructed to remove the structures were not insufficient because the affidavits of the workmen were not obtained. Kellogg, J., dissented in part.
    Appeal by the plaintiffs, Frank N. Freeman and another, individually and as executors, etc., from an order of the-Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of St. Lawrence on the 23d day of March, 1912, vacating an injunction theretofore issued herein enjoining the defendant from interfering with certain supports, ladders, etc., during the pendency of the action.
    
      Howard R. Sturtevant, for the appellants.
    
      Vasco P. Abbott, for the respondent.
   Smith, P. J.:

The action is brought to restrain the defendants from removing from leased property certain timbers, tracks, supports and other structures in a talc mine. The property had been leased by the plaintiffs to the defendant with a right to terminate the same by the defendant, and with the provision that in case of terminating the lease the party should have the right and privilege “ to take and remove any and ah buildings, machinery and tools of whatsoever nature, they may have on said premises, or may have put thereon.” The lease further provided that upon the termination thereof the said property “shall be left in. a good and workmanlike condition.” The papers show that to remove the staircases, the tracks and the supports in the mine would endanger the mine and make possible the caving in thereof and render it impossible to get the water out, thus greatly impairing its value. If this be true it would seem that it was not within the contemplation of the lease that such supports, stairs and tracks should be removed. Whether or not the lease contemplated that certain particular structures should be allowed to remain in order to leave the mine in a good and workmanlike condition, depends so largely upon the nature of those structures and Upon the necessity thereof to protect the mine and keep the walls safe from falling, that in our opinion it should properly be left to the trial for the determination upon the evidence there to be produced.

The criticism is made that the affidavits are insufficient as stating the facts upon information and belief without alleging why the affidavit of the informant is not produced. The affidavit shows, however, that defendant’s workmen were found removing the buildings and timbers, and shows their statements that they had been instructed to remove these other structures, the removal of which is claimed to impair the value of the mine. This information would seeni to be sufficient to authorize the granting of the injunction without attempting to get the affidavits of these parties that such was. their instruction. (See Finegan v. Eckerson, 32 App. Div. 233.)

These views lead to a reversal of the order vacating the injunction, with ten dollars costs and disbursements.

All concurred, except Kellogg, J., who concurred as to the supports, and otherwise dissented. .

Order vacating injunction reversed, with ten dollars costs and disbursements, and motion denied, with' ten dollars costs.  