
    GERKEN, Appellant, v. HALL et al., Respondents.
    (Supreme Court, Appellate Division, 'First Department.
    October 18, 1901.)
    G. H. Taylor, Jr., for appellant. L. Skidmore, for respondents.
   PER CURIAM.

Order affirmed, with $10 costs and disbursements, on opinion of court below. 71 N. Y. Supp. 763.

VAN BRUNT, P. J.

I dissent from the conclusion arrived at by the majority of the court, affirming the order in this case upon the opinion of the court below. If the rule adopted in this case is to prevail, tenants have no protection whatever against aggressions of their landlords, when such landlords have the ability to respond to any judgment which may be recovered in an action at law: This is the first time in the history of jurisprudence in this state, so far as I have been able to learn, that a covenant for quiet enjoyment has been deliberately violated by a landlord and no protection has been afforded to the tenant, except his right to bring an action for damages. Cases are cited where the courts have remitted a landlord to his action for damages where he has sought to enforce a restrictive covenant against the use of the premises; but none can be found where the landlord has threatened to, and is, deliberately violating his covenant of quiet enjoyment of the premises leased, and the tenant has not been afforded any protection. It is said that the maintenance of an injunction under the circumstances disclosed in this case would seem to work a greater hardship to the landlord than a vacation of it would to the tenant. In other words, notwithstanding, that the landlord deliberately violates his covenant of quiet enjoyment, because by such violation he may gain greater advantages than the damage he does to his tenant, therefore the tenant is not to be protected. It seems to me that this is a dangerous doctrine. It is urged that the landlord notified the tenant that he was going to make certain improvements. This, however, the tenant denies. But, if he did, and he then went on and covenanted that the tenant should enjoy, the premises for the term leased, which is to prevail,—his notice, or his covenant? It is said in the opinion of the court below: “It would be establishing a dangerous precedent to grant an injunction in every case where, as here, the possible rights and privileges of a tenant are temporarily, but not unnecessarily, interfered- with by proposed alterations- and improvements to the landlord’s building, even though the tenant may suffer some damage thereby.” Why, then, did the landlord make the lease? To what extent is he to be allowed to interfere and violate his-covenant? Who is to judge? What security has the tenant? How is the tenant to give proof in a court of law as to how many people have been deterred- from entering his establishment by this serious disturbance of the facilities of ingress and egress on and from the premises leased? The landlord has a big building, which he desires to improve. The tenant has but a small portion of that building. The landlord’s interests are great, and- the tenant’s small; but the small interest of the tenant is entitled to the same protection of the law as the large interest of the landlord. His ewe lamb may be of vastly more importance to the tenant than the numerous flocks of the landlord to him. The order should be reversed.  