
    Steward v. Winters and Sayres.
    May 26, 27 ;
    May 28, 1847.
    Where a lease, for a store contained a clause that it should be occupied for the regular dry goods jobbing business and for no other ; the lessee cannot carry on in the store the business of an auctioneer.
    If the tenant conduct the auction business in the store, the lessor may restrain him from pursuing that business by injunction.
    Where a lessee covenants for a particular use of the demised premises, equity will restrict him to that use, without any irreparable or even substantial injury being shown from a breach of the covenant.
    Motion to dissolve an injunction, restraining the defendants from carrying on the auction business, or selling goods at public auction, in the store number eighteen William street, in the city of New York ; and from conducting therein any business other - than the regular dry goods jobbing business.
    On the 2d day of February, 1847, the complainant, being the owner of that store, leased to the defendant, Winters, the first floor and cellar, for two years from the first day of May then next, at the yearly rent of fifteen hundred dollars, payable quarterly. The lease, executed by both parties, contained the following stipulation next following the demising clause, viz. “ the store to he occupied for the regular dry goods jobbing business, and for no other kind of business; and the store is not to be re-let, without the written consent of the party of the first part; there is to be no marking or lettering on the granite, and no alteration in the shelving, or in the store otherwise, unless by the consent of the party of the first part.”
    On the first of May, 1847, Winters entered into possession of the premises, and immediately, in connection with the defendant Sayres, under the firm of Sayres & Winters, commenced selling goods there at auction, and continued to sell at auction daily, till the service of the injunction, suspending over the door the customary auctioneer’s flag. Advertisements of their sales were published daily in the morning papers, in the columns of auctions, with the heading, “ J.- B. Sayres, auctioneer. By Sayres & Winters, Store No. 18 William Street. This day, at 10 o’clock, at the auction rooms. Dry goods,” &c. &c.
    On the sixth of May, the complainant notified Winters in writing, that he was violating the stipulation in the lease by selling at auction, and that the complainant would insist on its being enforced; but Winters continued the auction sales as before.
    The complainant owned several stores adjoining to and in the immediate neighborhood of the premises let to Winters, most of which were let to tenants carrying on the regular dry goods jobbing business ; Winters’ doings annoyed those tenants, and they complained of it to the complainants. The occupants of the lofts over Winters, who were also tenants of the complainant were annoyed by the auction sales ; and those sales were thereby, as he insisted, injuriously affecting his interests in respect to his stores as tenements, to prevent which was one reason for his inserting the restriction. The bill stated that the auction business is not the regular dry goods jobbing business, and the conducting of the former in the demised premises, was a violation of the stipulation in the lease. The defendants, in support of the motion insisted in affidavits, that the business conducted by them was within the terms contained in the lease; and they showed that the complainant owned a store opposite the demised premises in the same street, which he had leased for an auction store; and that several other auction stores were close by.
    
      E. Sandford, for the defendants.
    The bill, if it show any cause of action, shows a case for damages, of which a court of law alone has jurisdiction. In fact no legal injury is made out; it is all fanciful. The only annoyance urged, is the outcry and noise of the auctioneer. There is no such irreparable injury as to warrant an injunction. It does not even appear that the complainant will have a chance to let one of his neighboring tenements within the next two years ; nor that they are not all demised for long terms. The authorities relied on, are cases of waste or in the nature of waste. To warrant an injunction, there must be both a legal right and danger of irreparable injury. The counsel cited 7 Metcalf R. 378,405 ; 2 Story’s Eq. § 710, 718 to 722, 850, 958; 2 Daniell’s Ch. Pr. 1874, 5, 1876 note; 5 Ves. 259.
    
      J. Slosson, for the complainant.
    The lessor would have to sue at law every day, to recover damages there. It is not necessary to show an actual pecuniary damage, to enforce a restriction like this. It was inserted, so that these and the adjoining premises should not become less desirable to tenants, when they came to be let again. The court has jurisdiction. Drewry on Inj. 153, [114.;] 5 Ves. 555 ; 6 ibid. 106. 2 Story’s Eq. § 926, 928, 958; Jeremy’s Eq. Jur. Ch. 2, § 1. And see 1 Maule & Sel. 95 ; Archbold’s Land. & Ten. 113 ; Comyn’s L. & T. 7. The case in 7 Metc. 398, was one of nuisance. This goes on a different principle, viz. to enforce the convenant in the lease. (3 Paige 254; 4 Ibid. 510; Drewry on Inj. 251; 2 Story’s Eq. § 717.)
   The Vice-Chancellor.

I have no doubt that the business of selling goods at auction, is prohibited by the terms of the covenant in. the lease, and that the lessee when he executed the lease, knew perfectly well that the lessor intended to exclude the auction business. The philological authority cited by the defendants, does not bear them out. Dr. Webster defines a li Jobber”.to be, “ a merchant who purchases goods from importers and sells to retailers.” An auctioneer does not purchase at all. He sells the goods of others for a commission.

Without wasting time upon the well established distinction between a dry goods jobber and an auctioneer, which is too clearly marked to be confounded or obliterated by affidavits, I will proceed to the only question in the cause, that of jurisdiction.

It is said, that the remedy at law for damages is adequate, and that so far from there being an irreparable injury by the continuance of the breach of this covenant, it is shown that there can be no injury at all.

I apprehend that we are not to regard this subject in the manner indicated by the latter proposition. 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.

In the case of the bakery in 1 Vesey & Beames, hereafter cited, I have no doubt a great many witnesses might have been found, who would have testified, that the bakery was not an annoyance to them, or to any but over sensitive persons. And in Hills v. Miller, (3 Paige, 254,) the injury to the complainant, if tested by the opinions of witnesses, would scarcely have resulted in even nominal damages, in an action at law.

It is not necessary that the act complained of, should amount to a nuisance in law, either public or private. Nor is the court to enter into a comparison, and permit a tenant to carry on some trades as less offensive than others, where the covenant pro-hi bits the former. (Per Lord Eldon, in Macher v. The Foundling Hospital, 1 Ves. &. B. 188.)

So far as the injury is concerned, it is therefore unnecessary for the complainant to establish that it will be irreparable; or on a continuing covenant, that it will be substantially injurious.

The question remains, is there an adequate remedy at law ?

In the first place, it is manifest that at law a new cause of action will arise every day that the defendants sell at auction. If the lessor avail himself of his full rights at law, he will sue daily for damages. This would lead to a multiplicity of suits, harassing to both parties, and highly obnoxious to the censure of a court of equity.

Then if the suits were brought, how is it possible to estimate the actual damages 1 A jury might enter into a wide field oí conjecture, without any certainty of coming out of it at the point of justice to the parties. The jurors might infer that the continuance of an auction business in the demised premises, would for years diminish the rent of the adjoining property, and render the premises less desirable to good tenants. But any estimate of damages on that basis, however well founded, would be wholly conjectural. A different jury might imagine that the conducting of an auction business, would enhance the value of the adjoining premises, and refuse to give any damages. And witnesses could undoubtedly be produced, whose opinions would sanction a finding in either of these modes.

I think that in a case where the parties by an express stipulation, have themselves determined that a particular trade or business conducted by the one, will be injurious or offensive to the other, and there is a continuing breach of the stipulation by the one, which this court can perceive may be highly detrimental to the other, although on the facts presented, it is not clear that there is a serious injury, and it is manifest that the extent of the injury is difficult to be ascertained or measured in damages ; it is the duty of the court by injunction, to restrain further infractions of the covenant, thereby preventing a multiplicity of petty suits at law, and at the same time protecting the rights of the complainant.

The principles to be extracted from the following authorities, in my judgment, sanction this jurisdiction. I refer to Hills v. Miller, 3 Paige, 254 ; Barrow v. Richard, 8 ibid. 351; Rankin v. Huskisson, 4 Simons, 13; Barret v. Blagrave, 5 Ves. 555; (S. C., 6 Ves. 104, where the jurisdiction was virtually conceded on the motion to dissolve the injunction ;) Lord Grey de Wilton v. Saxon, 6 Ves. 106 ; Macher v. The Foundling Hospital, before cited ; 2 Story’s Eq. Jur. § 928.

As I remarked at the outset, the legal right is entirely free from doubt, so that the objection frequently made, previous to a trial of the right at law, does not exist. Therefore, the argument of Sir James Wigram, V. C., in Rigby v. Great Western Rail Road Co., is exceedingly applicable; and in this respect, his argument is not impaired by the judgment of the Chancellor of England in the same case, on dissolving the injunction. (4 Railway Cases, 175, and 1 C. P. Cooper’s Rep. Temp. Cottenham, 3.)

The motion to dissolve the injunction must he denied, with costs.  