
    Howard v. Ellis and others.
    Where one enters into possession of vacant demised premises by the consent or permission of the tenant, he will be considered in respect of the landlord’s rights, as substituted in the place of the tenant, although he disclaim all privity with the tenant.
    H. leased to E., one of a Arm of T. <fc E., a store designed for E.’s sole use, as a jewelry and fancy goods store, in expectation that he and T. would dissolve. The lease contained a restriction against the use of the store for any other business. T. and E. did not dissolve, and E. desired to relinquish the lease, but could not agree with H. on the terms. E. never entered into actual possession, and while the store was vacant, T. executed a lease of it to B. for a hat store, for a term corresponding with the unexpired term of E.’s lease. T. delivered the key to B. Both T. and B. disclaimed all connection with E., and denied that .he had been consulted, or had any connection with either of them in the transaction. Held, that B. must be considered, in respect of H.’s rights, as substituted in the place of E, the lessee.
    Where a lessee covenants for a particular use of demised premises, equity will restrict him to that use by injunction.
    Dec. 31, 1850;
    January 11, 1851.
    The complaint in this action was filed for the purpose of obtaining a perpetual injunction to restrain the defendants, Beach and Lockhart, from using or occupying the premises on the corner of Reade-street and Broadway, in the lower story of the Irving House, for the purpose of a hat store, or for making and selling hats, or for any other purpose, and also to restrain the defendant, Ellis, from permitting the premises to be used for any other purpose than as a jewelry and fancy goods store. Tiffany & Young were made parties defendant, it being alleged that, by an agreement with Ellis, they had become interested in the lease, and that they were colluding'with the other defendants, to the injury of the plaintiff
    In December, 1849, Howard, the plaintifij who was the proprietor of the Irving House, leased to the defendant, Ellis, the premises in question for five years from May 1, 1850, to be used for the purposes of a jewelry and fancy goods store, at an annual rent of $4500. Ellis was at that time a member of the firm of Tiffany, Young & Ellis, dealing in such goods a few doors below. The firm was composed of Ellis and the defendants, Tiffany & Young; and in consequence of an anticipated dissolution of that firm on the 1st of January following, he hired the premises for the purpose of carrying on the same business on his individual account. The lease was recorded in August, 1850; and it contained a covenant on the part of Ellis that the premises should not be used for any other purpose than a j.ewelry and fancy goods store, nor be underlet, nor the lease assigned, without the written consent of Howard first had.
    Before the commencement of the term provided for in the lease, Ellis, in consequence of the dissolution of his firm having been abandoned, was desirous of being relieved from the lease, and applied to Howard to accept a surrender, offering, at the same time, to make such a surrender, provided Howard would stipulate not to let the store for the jewelry and fancy goods business. Howard offered to accept an unconditional surrender, which Ellis refused to make. A formal possession of the premises was tendered to Ellis, but he has never entered upon their actual occupation.
    Subsequently, various applications were made to Howard by parties desirous of renting the premises, but he declined to interfere in the renting of them, and uniformly referred the applicants to Ellis, as being the lessee of the premises. Ellis hereupon assumed the position that he was not the lessee of the premises, and refusing to pay rent, suits were instituted by Howard for the recovery of the same, which are still pending. A suit is also pending, commenced by Ellis against Howard, to procure a cancellation and surrender of the lease, and for the appointment of a receiver during the litigation.
    The premises continued to be vacant until about the 27th of-November, 1850, at which time the defendants, Beach & Lock-hart, entered the same, under a lease executed by Tiffany for the unexpired period mentioned in the lease to Ellis, and at the satiae rent. This lease contained covenants that if either party to -the lease should be evicted or ousted by judicial order or otherwise, the lease should be void, and the lessor covenanted to defend the lessees against all molestation and hinderance in the use of the premises by all persons, except the plaintiff. Beach & Lockhart,' claiming under this lease, were fitting up the premises as a hat store. The plaintiff charged that, by some agreement with Ellis, Tiffany & Young were to be and were interested in the lease. and premises hired of him, and that the lease to Beach & Lockhart was executed by Tiffany in collusion with Ellis, and with his concurrence, for the purpose of evading the consequences which would result from its execution by Ellis, and that th'e defendants combined together for the purpose of evading the. covenants in the lease to Ellis, and in fraud thereof. The- plaintiff further charged that, besides the notice arising from the recording of the lease to Ellis, the defendants, Beach & Lockhart, had actual notice of that lease, and the terms and conditions thereof, and that they knew that Tiffany had no legal interest in the lease or premises. Circumstances were set forth sustaining the truth of the charges. On the complaint and affidavits showing the above facts, the plaintiff obtained a preliminary injunction, restraining Ellis, Beach, and Lockhart, as in the complaint prayed.
    The defendants, Beach & Lockhart, on affidavits moved to dissolve the injunction. They produced an affidavit of Tiffany, in which he disavowed any other interest in the premises than as a trespasser, and stated, that he had never acquired any interest in the same, by any agreement with Ellis, and that the lease to Beach & Lockhart was executed by him without any previous consultation with Ellis, and Beach & Lockhart likewise stated that they negotiated entirely with Tiffany, and had no connection with Ellis. .The defendants also set up a conversation between Tiffany and the plaintiff, which, they contended, operated as a waiver of the covenants in the lease to Ellis, and as a license to the defendants to enter. The plaintiff read opposing affidavits, rebutting the statements of the defendants, and explaining the conversation with Tiffany relied on by, the defendants. Beach & Lockhart denied any notice of the lease to Ellis, or of the. restriction in it, till after .they received their lease from Tiffany. An affidavit on the part of the plaintiff set forth the express notice of both to one of the firm of B. & L., before they took, the lease. Tiffany & Ellis both deposed that T. made the lease without Ellis’s concurrence, sanction, or aid, in any manner. It appeared that B. & L. obtained the keys of the premises from Tiffany.
    The motion was argued before Sandford, J., at special term. He consulted the Chief Justice and Paine, J., and the decision was made .with their concurrence.
    
      M. S. Brewster and J. T. Brady, for the defendants.
    I. The plaintiff shows no right to an injunction. Even if it would be competent for the court to restrain a mere breach of covenant, that power could only be exercised, when between the plaintiff and the person sought to be restrained there exists privity of contract or privity of estate.
    In this case there is no such privity between Howard and any of the defendants, except Ellis.
    1. Ellis was the alleged lessee. He has never assigned to either of the other defendants. Tiffany made a lease to Beach & Lockhart, who are now in possession. If that were a trespass on the part of either, the only person who can prosecute for the tort is Ellis. -(1 Chitty’s PI. 201; Story’s Eq. PI. 227.)
    2. Tiffany states that Beach & Lockhart went into possession with notice to, and an assent from Howard, by which the latter is estopped. (Dezell v. Odell, 3d Hill, 215; Chautauque County Bank v. White, 6 Barbour, 589.)
    3. The extent of the coxxrt’s jurisdiction to allow injunctions is now regulated by the code, and this case is not within the provisions of the code.
    II. The complaint is demurrable, because it presents as defendants persons who, if at all, are liable for their separate acts, in none of which are they shown to have concurred or combined.
    III. As to Ellis, it is not shown that he is doing any thing which renders him amenable to the jurisdiction of the court. He does not acknowledge himself to be the tenant of Howard, ■ nor has he put Beach or Lockhart in possession.
    IV. Young is not connected with the transaction mentioned in the complaint.
    V. This is a very oppressive proceeding. The landlord claims the rent, and refuses to declare the lease forfeited. At the same time he deprives Ellis .of any opportunity to enjoy the premises. He must either elect to forfeit the lease, in which event, of course, there is no necessity for this suit, or, affirming the lease, he must prosecute any action to which he is entitled, against Ellis alone.
    
      G. A. Davison and G. O’Gonor, for the plaintiff.
    The plaintiff is entitled to retain the injunction.
    In Steward v. Winters, (4 Sandf. Ch. Rep. 587,) it was decided, that where a lease for a store contained a clause that it should be occupied for the regular dry goods jobbing business, and for no other, the lessee cannot' carry on the business of an auctioneer. That if the tenant conduct the auction business in the store, the lessor may restrain him from pursuing that business, by injunction. ' And that where a lessee covenants for a particular use of the demised premises, equity will restrict him to that use, without any irreparable or even substantial injury being shown from a breach of the covenant. Many cases were cited in the decision. We also refer to 3 Paige, 254; 8 Ibid. 351; 4 Simons, 13; 5 Vesey, 555; 6 Ves. 104; 2 Story, Eq. Jur. 928; also 4 Sandf. 72, 11th point.
    The alleged license is no defence. (See 4 Sandf. Ch. Rep. 467 and 468. Also the case of Wolfe v. Frost, Ibid. 72, and particularly pages 90, 91, 92, 93.).
    Nor is a parol license valid, where the instrument or lease requires the license to be in writing.
   Sandford, J.

The defendants, Tiffany and Beach & Lock-hart, attempt to separate themselves from .Ellis, and boldly assuming that they are trespassers, insist .that there is no privity of- contract or estate between them and the plaintiff. It is an-ingenious attempt to obtain a rent from, the premises by using tbem for a purpose prohibited in the lease, but it cannot prevail. The facts prove too plainly to admit of a' doubt, that Tiffany, and Beach. & Lockhart through him, entéred into the possession of these premises by the consent or permission of Ellis. All the circumstances point irresistibly to that conclusion. The consequence is, that Beach & Lockhart must be considered, in respect of the plaintiff’s rights, as substituted in the place of Ellis, the plaintiff’s lessee. (Benson v. Bolles, 8 Wend. 175.)

Treating them as standing in the place of Ellis, the plaintiff is entitled to an injunction to restrain the use of the premises in violation of the restriction in the lease. This was decided in a like case in Steward v. Winters, (1 Sand. Ch. R. 587,) and it is unnecessary for me to repeat the grounds upon which the court thus interferes. The code of procedure does not alter the rule of equity respecting the allowance of injunctions.

• As to the parol license from the plaintiff, set up in the defendant’s affidavits, it suffices to say, for the purposes of this motion, that it is fully denied.

Motion to dissolve the injunction denied.  