
    Otto Doepfner, Plaintiff, v. Lamont M. Bowers, Defendant.
    (Supreme Court, New York Special Term,
    February, 1907.)
    Injunction — Who and what may be enjoined — Interference with property rights by private persons — Possession and use of premises.
    Landlord and tenant — Extensions, renewals, etc.— Option to renew — Notice of intention.
    Equity will relieve a tenant from the consequences of his failure to comply with a condition requiring notice in a covenant for the renewal of his lease where it appears he has given a fair intimation of his intention to renew and no injury has been done to the other party. '
    
      Wliere a tenant had occupied premises for business purposes for nearly ten years, under a lease containing a covenant for an extension of five years more, had expended a large sum in fitting up the premises for his business and had built up a valuable business there and, being unexpectedly in a foreign country on the day when the terms of the lease required notice of his intention to renew to be given, gave notice eighteen days later, the day after his return to this country, the landlord having suffered no injury from the delay, held, that equity would relieve the tenant from the consequences of his omission to give noticq on the day named in the lease and, in a suit to restrain the landlord from interfering with his property, that an injunction pendente lite should be granted.
    Motion for a temporary injunction.
    Arthur F. Cosby, for motion.
    Howland, Murray & Prentice (George Wellwood Murray, of counsel), opposed.
   Giegerich, J.

The plaintiff, a tenant, moves for an injunction pendente lite restraining the defendant, his landlord, from interfering with his possession of the premises in suit. The facts necessary to be stated are as follows: The plaintiff is a druggist conducting business at the northwest corner of Thirty-fourth street and Lexington avenue, in the borough of Manhattan, which premises he occupies under a lease having a term of ten years from the 1st day of May, 1897, at a yearly rental of $2,000, which lease contains a covenant that the lessor will extend the same for a further period of five years from the date of its expiration, at a yearly rental of $2,200, provided that the lessee has fully complied with all the covenants of the lease and given notice in writing on or before six months prior to the date of the expiration of the lease of his intention to take advantage of such option. The plaintiff shows in his moving papers that he expended the sum of $5,000 in fitting up the premises with shelving, counters, a show case, soda fountain and other necessary drug store equipment and has built up a good will which he estimates at the value of at least $10,000, all in the belief and expectation that he would be able to carry on the business for the renewal period of five years. By the terms of the lease possession was to begin on May 1, 1897, but the premises were not ready for occupancy and the plaintiff did not take possession or pay rent until June first. On November 1, 1906, the date on or before which written notice of election to renew should have been given, the plaintiff was in Germany, whither he had gone in July, expecting to return on October first, but owing to difficulty in securing return passage and for other reasons he did not return until November eighteenth, and on the following day, November nineteenth, he served notice in writing of his option to renew. The defendant refused to grant the renewal at a rental of $2,200 as specified in the lease, but demanded instead $3,400 for the first three years, $3,800 for the next three and $4,000 for the third three years; or an annual rental of $3,600, which rates the defendant and his agents state are the same or lower than offers made for the premises by others than the plaintiff. The plaintiff rests his case upon the special facts and circumstances and the. equitable power of the "court to relieve against forfeiture and the consequences of mistake and inadvertence. I am of the opinion, upon the facts shown in this case, that the plaintiff is entitled to relief. There is some excuse for his failure to give the written notice required by the lease, and it does not appear that the defendant has in anywise been injured by the short delay in giving such notice. In New York Life Ins. & Trust Co. v. Rector, 12 Abb. N. C. 50, which was a case quite similar to this, the court said (p. 52): “ The plaintiff was evidently misled by the recital in the assignment into the belief that the lease did not expire until December 30, 1881. In the absence of any express intention on its part, it cannot be "reasonably presumed that the plaintiff would knowingly surrender so valuable an interest as it had in this lease without adequate compensation. Neither should its honest mistake of a fact, under all the circumstances, be regarded as laches.” In McAdam on Landlord and Tenant (3d ed., § 155, p. 542), the following rule is stated: “Equity will relieve a lessee who fails to comply with a condition respecting notice, in a covenant for the renewal of his lease and compel specific performance thereof, where it appears that he has given a fair intimation of his intention to renew, and no injury has been done to the other party; hut not where there has been gross laches, or where the neglect was willful, and a condition requiring written notice may be dispensed with on like grounds.” As before stated, I do nit think it could fairly he said that the plaintiff was guilty of gross laches or of willful neglect. I am of the opinion, consequently, that the injunction pendente lite should be issued, but only on terms that will protect the defendant in the event of his success upon the trial. It is evident that the amount of security should he large, because of the great difference in the amount of the rental provided in the lease and the amount which it is undisputed the defendant could receive if free to rent the premises to a new tenant or to make an entirely new agreement with the plaintiff. The amount and terms of such security will be determined upon the settle inent of the order.

Ordered accordingly.  