
    Bernard Gredinger and Fanny B. Gredinger, Appellants, v. Thomas J. Higgins, Commissioner of Parks for the Borough of the Bronx, City of New York, and The City of New York, Respondents.
    First Department,
    July 7, 1910.
    Injunction—park privileges, city of New York removal of buildings erected by licensee enjoined.
    One holding a'license to sell refreshments, etc., in a park, owned by the city of ■ New York, who in reliance thereon has paid the license fee for the first year, which has not expired, and has expended §3,800 in the erection of buildings and.who has not been guilty of any default or violation of his contract obligation, is entitled to an injunction restraining the park commissioner from removing or demolishing said buildings, until it has been determined that the removal is ordered in good faith and for the purpose of enabling the commissioner to execute a plan adopted for the development of the park system. Under such circumstances, the plaintiff has no adequate remedy at law. Ingraham, P. J., dissented.
    Appeal by the plaintiffs, Bernard Gredinger and another, 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 24th day of May, 1910, denying the plaintiffs’ motion ' for an injunction pendente lite, and vacating a tempbrary injunction.
    
      Norbert Blank, for the appellants.
    
      Theodore Connoly [Clarence L. Barber with him on the brief], for the respondents.
   Laughlin, J.:

On' the 24th day-of Hovember, 1909, the department of- parks by the commissioner 'of parks for the borough of the Bronx after advertising for sealed proposals for the privileges made a formal agreement in writing with the plaintiffs by which, as therein recited, “ in order to promote and increase the public enjoyment of the public park known as Crotona Park,” the plaintiffs were granted “ a license, permit or privilege, to sell refreshments (spirituous liquors excepted), let skates, and check coats and wraps, at the building situated near the pond in said park and used for these purposes,” and were given the further privilege of renting boats and of maintaining the pagoda near the music, stand for the sale of refreshments “for the term of • five years from the twenty-third day of December, 1909, unless this agreement be sooner revoked, canceled or annulled, as herein provided.” The agreement then contains eleven covenants on the part of the plaintiffs> by which they undertook, among other things, to- pay each year in advance to the department of parks for the privileges conferred the sum of $276 the first year and a larger sum each succeeding year, and to keep the places open and to keep and furnish sufficient skates and to rent the same and to furnish refreshments at rates and on a scale of prices to be prescribed or approved by the department of parks, and to make all necessary repairs, renewals and renovations that shall be required to maintain the said building and the pagoda in good and proper condition, and to the satisfaction ” of the department of parks. It was further provided that should the plaintiffs “ omit to observe, keep or perform ” any covenant of the agreement on their . part, the department of parks might revoke, cancel and annul the agreement, and in that event at the expiration of five days after notice thereof the plaintiffs agreed to cease “ to exercise the privileges” granted and to remove, from the park the property belonging to them, and that in the event of their failure to do so the department of parks might eject them without liability for damages. It appears by the moving papers that the plaintiffs made the first annual payment in accordance with the agreement, and expended . in repairs on the buildings the sum of $2,800, and incurred farther liability in preparing to perform the agreement on their part, and that they have not been guilty of any default or violation of their contract obligations. It further appears that on the 7th day of April, 1910, the plaintiffs were ordered by employees of the department of parks to remove their property from the pagoda, and were, notified by said employees that it was to-be torn down and demolished, and on inquiry of "the defendant commissioner, who in the meantime succeeded the commissioner who made the agreement, they were notified that both the pagoda and the skate house were to be torn down. The defendants in their answer allege that the commissioner ,of parks, with a view to preserving and improving the ornamental features of the park, determined on the advice of a landscape architect that the building known as the skate house and the -pagoda “ are objectionable and seriously interfere' witli the proper development of the park and the convenience and enjoyment of the people resorting thereto,” but that the commissioner does not intend at present to remove the skate house, but does intend to remove the pagoda from the'position it now occupies, which it is claimed is at the junction of the paths leading to the music stand and directly in the way of the approach thereto from the west,” to a location “ in the same portion of the park ” which-will be less objectionable. It appears by the affidavit of the landscape architect that he recommended to the former commissioner of parks for the borough of the Bronx and to the defendant commissioner that the pagoda be moved from the place it now occupies to -another point in the same portion of the park. It is fairly to be inferred from the record that the part of the park in question lies near the outskirts of the city, and that it has not been substantially improved since it was acquired for park purposes, and remains virtually in its natural state, and is for the most part covered with trees and rocks. It is not shown that any plan for the improvement of the park which requires that these buildings be demolished has been made, or even that the commissioner of public parks has determined upon a plan of improvement which requires that they be demolished'; nor is any real necessity shown for the immediate removal of the pagoda from the site if now occupies.

We do not deem it necessary at this time to decide whether the agreement is in all respects valid and binding upon the defendants, but very likely it must be deemed to have been made and accepted subject to the-authority of the defendants to develop and improve the park. As already observed, however, there is no evidence that a plan for the improvement of. the park has been adopted which requires the removal or demolition of the buildings, and there is evidence tending to show that the contemplated action of the park commissioner is not in good faith with a view to improving the park, but that, on the contrary, he is actuated by bad faith and ill-feeling toward one of the plaintiffs. If the agreement be valid and binding on the defendants, in the absence of a breach thereof by plaintiffs, until the destruction or removal of the building becomes necessary in the development of the park, then it is apparent that the plaintiffs have no adequate remedy at law. In view of the facts that an officer of the city, having jurisdiction over the park, made the agreement, that the city has received the license fee or charge exacted for the exercise of the privileges conferred for a year, which has not expired, and that the plaintiffs have been induced on' the faith of the agreement to make this large expenditure of money, good faith requires that the plaintiffs should be allowed the enjoyment of the privileges until it is at least determined that the .removal or demolition of the buildings has been ordered in good faith and for the purpose of enabling the commissioner of parks to execute a plan for the development of the park system, which has been determined upon and which is about to be executed. (See Gushee v. City of New York, 42 App. Div. 37.)

It follows, therefore, that the order should be reversed, with, ten dollars costs and disbursements, and motion for continuance of injunction granted, with ten dollars costs.

Clarke, Scott and Miller, JJ., concurred; Ingraham, P. J., dissented.

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