
    Moss F. Moses, Respondent, v. Walter J. Salomon, Appellant.
    First Department,
    May 17, 1912.
    Injunction—landlord and tenant — temporary injunction restraining interference with repairs by tenant.
    Where there is' an issue as to whether a sub-tenant of a portion of a building was authorized by his landlord to make certain structural changes in the building such as could not be made without consent, the landlord should not be enjoined pendente lite from interfering with the proposed alterations of the sub-tenant. Such injunction enabling the tenant to proceed with the alterations substantially decides the controversy before trial. Such injunctions are only upheld where they rest upon facts substantially admitted or fairly and unmistakably proven.
    Appeal by the defendant, Walter J. Salomon, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of March, 1911.
    
      Walter H. Bond, for the appellant.
    
      Clayton J. Heermance, for the respondent
   Scott, J.:

The defendant appeals from an order granting an injunction pendente lite whereby said appellant is enjoined and restrained from “in any way interfering with or causing interference with the making by the plaintiff ” of certain structural alterations in premises held by plaintiff under lease.

The defendant is the general lessee from the owner of the whole of a large building at Forty-second street and Fifth avenue in the city of New York which he sublets to various tenants. Among his sub-lessees is a concern known as the New York Meischman Stores, which holds a lease for a space of forty by twenty-nine feet on the ground floor (including the basement) at the corner of the street and avenue. Of this space the Meischman stores in turn sublet to plaintiff a portion measuring ten by twenty feet, and the vaults underneath which plaintiff used as a gallery for the display of pictures. Eecently plaintiff has sub-leased from the Meischman stores further space nine by ten feet in area, situated in the rear of and adjoining the space he already occupies. It is with reference to this recently leased space that plaintiff proposes to make the alterations with which the defendant has been enjoined from interfering.

These alterations involve the shifting of certain partitions and doors, and, what is more important, include the removal of the whole floor of the leased space so as to provide for a staircase leading to the art gallery below. It cannot be-doubted that these alterations involve a material structural change in the building such as a tenant of a small part of a building would not be justified in making without the consent of the landlord. The tenant avers that he obtained such consent from the defendant before he took the lease from the Meischman stores. This the defendant denies, and the question rests upon the affirmation on the one side, and denial on the other, with little or no corroboration of probative value on either side.

The injunction order appealed from is in effect a mandatory injunction which decides the controversy in favor of the plaintiff, and affords him all the relief to which he would be entitled on a trial if successful. It is not an injunction to preserve the status quo until a trial can be had, but one permitting the status to be changed without a trial of the cause, leaving it to be determined after the alterations have been made whether they were authorized or not. Such injunctions have frequently been condemned, and while they are sometimes upheld it is only when the facts upon which they rest are either substantially admitted, or are clearly and unmistakably proven. This is not such a case. As has been said, we have only affirmation on one side and' denial on the other, with the burden of proof still resting on plaintiff. Our conclusion, therefore, is that the order appealed from was erroneous, and we are not prevented from saying so merely because the intended alterations may have already been made, under the protection of the injunction. The defendant is entitled to an adjudication upon the propriety of the order.

The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  