
    Morris Neimam et al., App’lts, v. James H. Butler, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    1. Appeal—Sufficiency of findings.
    Where no case is made and none of the evidence printed, and appellant expressly states that the appeal is from the findings of fact and conclm sions of law alone, on the theory that the findings do not sustain the conclusions, and that on such findings the court was bound as matter of law to find a judgment for the appellant, it must be taken as conceded by appellant that the testimony wairanted the findings.
    3. Lease—Covenants — Hazardous use of premises by landlord—Injunction.
    Defendant leased the upper part of certain premises to plaintiffs, the lease containing a covenant that he would not let the remainder to any person for any business of a noxious or offensive character, or deemed extra hazardous, and would not permit the use of the same for any such business. At the time of the letting, defendant used the lower portion for a carriage repair shop, and had a blacksmith’s forge, and stored paint and varnish in the cellar, all of which was known to the lessees. Meld, that the continued use in that manner by defendant did not constitute a violation of the covenant; that the execution and acceptance of the lease with such knowledge imported a license that defendant might keep the articles and employ the agencies incidental and essential to the continuance of defendant’s business, and that even if there was a technical violation, yet, .as plaintiffs had suffered no injury, an injunction against such use should nut be granted.
    Appeal from a judgment entered at an equity term of this court.
    
      Moses Esberg, for app’lts; A. G. Vanderpoel, for resp’t.
   Bookstaver, J.

Plaintiffs brought this action to procure á judgment enjoining and restraining the defendants from using a portion of the buildings known as Nos. 242, 244 and 246 East One Hundred and Twenty-second street for a purpose offensive ¡and obnoxious to plaintiffs, and to restrain a violation of a covenant in the lease. The action was tried at an equity term of this court, and a judgment rendered for the defendant. Plaintiffs appeal from the findings and conclusions of law alone, without printing any testimony; hence the only question which can arise on this appeal is whether the findings of fact sustain the conclusions of law. It may be conceded, as appellant contends, that it is well settled that where the appeal is from a judgment rendered on the report of a referee or the findings of a judge, the exceptions appearing in the proposed case serve as a notice to the respondent of an intention to raise-the question of legal error, and puts on him, the respondent, the responsibility of adding by amendment any omitted evidence on the question to be raised. Halpin v. Phenix Ins. Co., 118 N. Y., 171; 28 St. Rep., 788; Brayton v. Sherman, 119 N. Y., 623; 28 St. Rep., 854; Healy v. Clark, 120 N. Y., 642; 30 St. Rep., 897. But this rule cannot apply where no case is made and none of the evidence is printed, and where the appellant in his brief expressly states that the appeal is taken from the findings and conclusions of law alone, on the theory that the findings of fact do not sustain the conclusions of law, and that on these findings the court was hound as a matter of law to find a judgment in favor of appellant; in such a case it must be taken as conceded by the appellant that the testimony warranted the findings.

The learned judge who tried this case found that on the 24th July, 1890, at the city of New York, the defendant, as owner of the real estate known as Nos. 242, 244 and 246 East One Hundred and Twenty-Second street, executed and delivered the indenture of lease or agreement under seal, mentioned in the complaint, to the plaintiff, Morris Neiman; that the lease in question was signed and executed by the plaintiff Neiman with full knowledge on his part that the defendant had built and was then using a blacksmith’s forge, and had paint and varnish in the cellar of the premises ; that he knew at the time he executed this lease that the defendant occupied the first story of the buildings in question as a carriage depository, and that painting and varnishing was being done there in the prosecution of defendant’s business; that the •defendant signed and executed the lease understanding that he was to continue the business as then carried on by him, but in ■case of his leasing it to other persons or corporations the condition should apply to them only; that the plaintiff, Morris Neiman, entered upon the occupancy of the demised premises on or about the 1st November, 1890, and continued to occupy the same until the formation of the copartnership between him and his co-plaintiffs, on or about the 1st day of January, 1891, and that he then transferred to such firm his interest in the lease, and that the plaintiffs had continued to occupy the premises under the lease, and pay the rent therefor to the defendant since the formation of the copartnership, carrying on the business of manufacturing knitted worsted goods made of woolen yarn; that such lease contained the following covenant: “It is further agreed between the parties hereto as a part and parcel of the consideration hereof, that the party of the first part (landlord) will not let or rent that portion of the premises Nos. 242, 244 and 246 East One Hundred and Twenty-Second street, New York city, not let to the party of the second part as aforesaid, to any person, persons or corporation, for •any business'of a noxious or offensive character, or deemed extra hazardous, or for any business that may be extra hazardous to the party of the second part (tenant), and that the party of the first part (landlord) will not permit the same to be used for any business that is hazardous, during the term hereby demised.”

That the plaintiffs in their business used worsted goods of delicate tint and texture, and employed a considerable number of workmen and girls; that before such lease was executed the defendant was occupying certain premises on Second avenue near One Hundred and Twenty-second street for the repair and manufacture of carriages, and since the execution of the lease the defendant had used and continued to use the portion of the premises not demised to Morris Neiman for the repair of carriages, in -which business he occasionally used a blacksmith’s forge placed in the basement of the premises, also hammers and a sledge, a swedge, and paints and varnish in the repair of-carriages, and that the hammers were about one pound in weight. The court also-found that with the knowledge and consent of the defendant and for the purpose of his business of repairing carriages, hammering was done in the basement; that the maintenance and use of the blacksmith’s forge and the repairs of carriages on the premises occupied by the defendants and the use of varnish and paint therein was hazardous in the sense only that the presence of fire, paint and varnish whether on the premises described in the complaint or elsewhere may be so considered; and that the use of paint and varnish in the premises in which the blacksmith's forge was operated was hazardous on account of fire in the sense above stated only; and that the use of paint and varnish in the premises in which the blacksmith’s forge was operated was offensive and obnoxious to plaintiffs and their servants, but not more so than the use of paint and varnish in the same premises may be offensive and obnoxious to- persons other than plaintiffs or their servants. He also found that neither Morris Neiman nor the plaintiffs ever entered into any express agreement with the defendant to allow him to use any portion of the realty for the repair of carriages or to operate or maintain a blacksmith’s forge therein. But he found that no smoke with noxious and offensive odor® and no other material dangerous to the health or comfort of plaintiffs or their servants came from defendant’s blacksmith’s forge to the plaintiffs’ premises, and that it did not cause smoke or dust to arise therefrom so as to cause any injury to plaintiffs’ stock of worsted goods, and that such smoke and dust had not spoiled or damaged any of their goods, and that the plaintiffs had not suffered any damage by the use of the blacksmith’s forge in question, by the defendant as he used it.

These findings, all of which must be taken as having been substantiated by evidence, make it clear that the defendant did not-violate the first part of the covenant above recited, by letting the premises to any person, persons or corporation for any business of any character, as he has continued in the occupation of the same just as he had been doing at the time the lease was made and the covenant entered into; so that the only question arising is, whether the latter part of the covenant, in which the defendant undertook not to permit the premises to be used for any business which was-hazardous during the term, has been violated in such a way as to authorize the granting of an injunction to prevent its further violation. The only possible ground on which the affirmative of such a contention can rest is, that when the plaintiffs requested the court to find the maintenance and use of a blacksmith’s forge and the repair of carriages on the premises occupied by defendant, and the use of varnish and paints therein is hazardous, the learned judge who tried the case stated: “I find this, in the sense that fire and the use and storage of paints and varnish where there is fire may be deemed hazardous,” and that when asked to find the same thing in respect to health he made the same qualification, which was, in substance, repeated as often as such or similar requests were made. What the judge who tried the case meant by these qualifications is apparent from the twenty-ninth finding of fact, in which he says, “ that the maintenance and use of such blacksmith’s forge, and the use of varnish and paint in defendant’s business as repairer and manufacturer of carriages is hazardous to plaintiffs’ business in the sense only that tire maintenance and use of a blacksmith’s forge and the use of varnish and paint in premises other than those mentioned in the complaint, arid in proximity thereto, may be considered hazardous to the same or other business.” But this was no more than saying what every one will concede, that whenever and however fire may be brought in close proximity to paint, oil, varnish or any other inflammable substance there will be hazard or danger. It is just as true of a gas flame as of a blacksmith’s forge, and of a lighted candle as of either. Yet no one would think of obtaining an injunction against ■carrying around a lighted candle in such a place.

The danger is not in the forge, but in the fire. And this is all the judge meant when he found as he did. Besides he has found that the lease was executed by the plaintiff Morris Heiman with full knowledge that the defendant had built and was then using the blacksmith’s forge and had paint and varnish in the cellar of the premises, and that these were used on the first floor in the prosecution of his business. There is nothing in the findings which intimates that the defendant intended or was expected to give up his business or was in any manner to change his mode of carrying it on when the plaintiffs took possession of the portion of the premises leased to them. Had this been expected of him, the plaintiffs should have had'it expressed in terms clearer than in the covenant above referred to. And the judge very properly found that the defendant executed the lease understanding that he was to continue his business as then carried on by him. We think the same rule should be applied to the construction of this covenant which has often been done in insurance cases, which is that the insurance of property in contemplation of its use for a known and specified purpose imports ex vi termini a license to keep the articles and employ the agencies incidental and essential to the beneficial enjoyment for the use proposed. So far has this rule been applied in such cases that it has been held it will prevail over a prohibition in the printed part of the policy. Harper v. Alb. Mut. Ins. Co., 17 N. Y., 194; The Mayor, etc v. Ham. Fire Ins. Co., 10 Bos., 537. We have said nothing as to the defendant’s business being hazardous to the health of plaintiffs or of his employees, for the reason that we think the covenant was intended to apply only to a business hazard, but if it applies to health as well, then the same reasoning is applicable, especially in view of the fact that the judge has found no smoke or noxious or offensive odors came from the forge in question, and that no other material, dangerous to the health and comfort of plaintiffs, came from it and that it was only offensive or obnoxious where there was fire;

It cannot be successfully argued that the defendant’s business as carried on by him was unreasonable or a nuisance, as the judge was specifically requested to find both of these facts, and he refused. Nothing has been presented to us from which we can draw any such inference, much less find that it was either.

Besides all this, the judge expressly found, on what we must assume was sufficient evidence, that the plaintiffs suffered neither damage nor inconvenience from the use of the blacksmith’s forge or the odors or gases arising therefrom; consequently even if there were a technical violation of the covenant the plaintiffs have suffered no injury therefrom and no in junction should issue. In this case there is no irreparable injury, no clear and certain right to the relief asked for, no interruption of any right which on just ground ought to be prevented.

A court of equity will not grant an injunction nor compel the performance of a covenant where there is no substantial wrong to be righted. Purdy v. The Man. R. R. Co., 36 St. Rep., 43; Brush et al. v. Met. R. R. Co., 44 id., Ill; Mechanics' Bank of Alexandria v. Lynn, 1 Peters, 376; King v. Hamilton, 4 id., 311; Taylor v. Longworth, 14 id., 172; Peters v. Delaplaine, 49 N. Y., 367, 373 Sherman v. Wright, id., 227; Inglehart v. Vail, 73 Ill., 63; Fish v. Leser, 69 id., 394; Thurston v. Arnold, 43 Ia., 43; Sweeney v. O'Hora, id., 34; Quinn v. Roath, 37 Conn., 16; McComas v. Easley, 21 Graft (Va.), 23; Hale v. Wilkinson, id., 75; Plummers. Keppler, 26 N. J. Eq., 481. It will not in all cases interfere even to compel the performance of a statutory provision ; it must first be-satisfied that the thing asked for will be useful to the plaintiff. Clarke v. Rochester, etc., R. R. Co., 18 Barb., 350. And although it will grant an injunction against a tenant for an infraction of a negative covenant on slight grounds, yet it will not enforce the observance of mutual covenants in regard to the use of land where in its discretion it would not be for the advantage of the parties. Trustees Col. Co. v. Thacher, 87 N. Y., 311; Story’s Eq., 713, 742, 750, 769; Willard’s Eq., 263, 264. So, too, it will not interfere by injunction to prevent an injury merely nominal or theoretical in its nature, although an action at law might be maintained for the same injury, Bassett v. Salisbury Mfg. Co., 47 N. H., 426; nor where the case presents a probability that more wrong will be done than prevented by the injunction asked for, North v. Kershaw, 4 Blatchf., 70, as is apparent would happen in this case.

The judgment appealed from should be affirmed, with costs.

Pryor, J., concurs.  