
    Philip F. Donohue, Plaintiff, v. The City of New York and John A. Bensel, as Commissioner of Docks of the Said City of New York, Defendants.
    (Supreme Court, New York Special Term,
    May, 1907.)
    Injunction — Preliminary injunction — Grounds and matters considered — When granted in general.
    Landlord and tenant — Termination of relation — Under landlord’s option — Good faith required.
    Where a ten-years lease of land under water in the city of New York, where the tenant conducts a bathing establishment with privilege of renewal for another ten years at an increased rental, provides that in case the board of docks should determine to proceed with the building of wharves in the section or district of the water front embracing the property in said lease described, according to any plan then or thereafter approved, and that it should be necessary for such purpose to terminate the interest of the tenant in the property, said lease should be terminated on written notice of a resolution of the board of docks to that effect, the city’s right to terminate the lease must be exercised in good faith and upon fair grounds and not capriciously or arbitrarily. •Where the tenant claims to have expended over $20,000 in improvementa upon the property, and before the expiration of the first term a notice was served upon him by the commissioner of docks that he had adopted a plan for the improvement of the water front of the leased premises; that said plan had been duly approved, and that he had determined to proceed with the work of building docks and a ferry slip pursuant to such plans, and where it appears that there is no necessity for the contemplated public improvement and no attempt has been made to carry out the proposed plan, the tenant, in an action against the city to restrain it from interfering with his possession under the lease, will be granted an injunction pendente lite.
    
    Action for an injunction.
    Gans & Iselin, for plaintiff.
    Wm. B. Ellison, Corporation Counsel, for defendants.
   O’Gorman, J.

This action is brought to restrain the defendants from interfering with the plaintiff’s possession under a lease from the city of New York under date of June 13, 1899. The demised property consists of certain land under water at the foot of West One Hundred and Fifty-fifth street, in the city of New York, where the plaintiff conducts a bathing establishment. The lease, which was for a period of ten years, with the privilege of a renewal for a further period of ten years at an increased rental, contained a provision to the effect that in case the board of docks should determine to proceed with the building of wharves in the section or district of the water front embracing the property in said lease described, according to any plan then or thereafter approved, and that it should be necessary for such purpose to terminate the interest of the tenant in the property, said lease should be terminated on written notice of a resolution of the board of docks to that effect. On April 2, 1907, the commissioner of docks served a notice upon the plaintiff whereby he advised the plaintiff that he had adopted a plan for the improvement of the water front covering the premises in question; that the plan had received the approval of the commissioners of the sinking fund on the 20th day of March, 1907, and that he had determined to proceed with the work of building docks and a ferry slip pursuant to such plans. In substance, the city reserved the right to terminate this lease whenever it interfered with a public improvement. It is apparent that no such necessity has arisen. The proposed plan is but tentative. No attempt has been made to carry it out. It may never be executed. No improvement of the water front has been commenced in that section, either north or south of the land occupied by the plaintiff. With the greatest possible diligence on the part of the city authorities it would take many months before the necessities of any public improvement could require the removal of these bath houses. One Hundred and Fifty-fifth street'and the Hudson river is now practically inaccessible for passenger or vehicle traffic. Although it is proposed to build a dock and a ferry slip at the foot of that street, it can be reached only through One Hundred and Fifty-third street or One Hundred and Fifty-eighth street, between which streets east of the river there is a solid stone retaining wall sixty feet high supporting the Riverside drive extension. The plaintiff claims to have expended upward of $20,000 in improvements upon the property. Business is conducted thereon only during the summer months. Under the circumstances it would be inequitable to permit the defendants to terminate the lease at this time and thus deprive the plaintiff o'f the business of the approaching summer season. A lease such as the one held by the plaintiff connot be terminated capriciously or arbitrarily. The right reserved must be exercised in good faith and upon fair grounds. Gushee v. City of N. Y., 42 App. Div. 37. The affidavits present a meritorious case and an injunction pendente lite should issue.

Injunction ordered.  