
    Piankay Realties, Inc., Respondent, v. Salvatore Romano, Appellant.
    First Department,
    June 14, 1946.
    
      
      Max Shlivek of counsel (Saul S. Brin with him on the brief; Shlivek & Brin, attorneys), for appellant.
    
      Samuel J. Joseph for respondent.
   Per Curiam.

The lease between the parties provides that • the premises shall be used only for the manufacture of custom-made furniture. Defendant is using the premises for manufacturing picture frames, pocketbook frames and Incite objects. Plaintiff claims that it learned of this use only at the beginning of the year 1946, and immediately instituted this action to enjoin it. Defendant claims that such use has been made of the premises since 1943, with the full knowledge of plaintiff.

Defendant has been lessee of the premises since 1927. The present dispute appears to be the culmination of recent differences between the parties. The record leaves us in doubt as to when the defendant commenced the enjoined use and when the plaintiff learned of it. If those were the only questions, we would accept the trial court’s findings thereon as conclusive. ,We believe, however, that consideration should be given in a controversy of this kind, particularly at this time of acute shortage of loft space as evidenced by the current emergency rent legislation, to the relative prejudice and benefit of the injunction to the parties. The prejudice to the defendant is obvious. He will have to give up what is presently his only, business. We cannot see, on the other hand, any benefit to the ■ plaintiff from the injunction or that plaintiff is prejudiced by the present use.

While the evidence indicates that defendant presently employs more persons than he did at the last time he manufactured furniture, it does not show that the number of employees in the present work averages any higher than it did in the furniture manufacturing. Plaintiff has not shown any undue or increased burden or strain on the building facilities, or that its costs for insurance or operations have been increased, or that it has been prejudiced in any way by the added use.

The judgment should be reversed, without costs, and the complaint dismissed, without costs.

Cohn, J.

(dissenting). The lessor had an absolute right by

appropriate provision in the lease to specify that the demised premises could be used for a particular purpose only. A court of equity may, by injunction, prevent the tenant from using the premises for any other purpose. (Bovin v. Galitzka, 250 N. Y. 229, 231; Lyon v. Bethlehem Engineering Corp., 253 N. Y. 111; Thousand Island Park Assn. v. Tucker, 173 N. Y. 203, 214; R. L. Association v. Kellogg, 141 N. Y. 348.)

The lease provided that the tenant might not use or suffer to be used, the whole or any part thereof for any purpose other than the Manufacturing and Repairing of Custom Made Furniture.” Under the terms of his agreement, the defendant tenant had no right to use the premises for the manufacture of lucite objects, novelties or ornaments. However, the manufacture of wooden picture frames reasonably might be regarded as coming within the purview of the language of the lease and such use of the premises should not have been enjoined. Except as to the manufacturing of picture frames, the court was fully warranted in granting permanent injunctive relief against defendant. (The owner of land, selling or leasing it, may insist upon just such covenants as he pleases, touching the use and mode of enjoyment of the land; and he is not to be defeated when the covenant is broken, by the opinion of any number of persons, that the breach occasions him no substantial injury. ( He has a right to define the injury for himself, and the party contracting with him must abide by the definition.” (Steward v. Winters, 4 Sandf. Ch. 587, 590; see, also, Weil v. Abrahams, 53 App. Div. 313, 315; Bartholdi Realty Co. v. Robard Realty Co., 156 App. Div. 528, 531; Doherty v. Eckstein Brewing Co., 198 App. Div. 708, 711.)

Accordingly, I dissent and vote to modify the judgment by excluding therefrom the injunction against manufacture of wooden picture frames. In all other respects the judgment should be affirmed.

Dobs, Callahan and Peck, JJ., concur with Per Curiam opinion; Cohn, J., dissents in opinion in which Martin, P. J.. concurs.

Judgment reversed, without costs, and the complaint dismissed, without costs. The findings inconsistent with this determination should be reversed and such new findings made of facts proved on the trial as are necessary to sustain the' judgment hereby awarded.. Settle order on notice.  