
    Samuel L. Hewlett and O’Brien Brothers Sand and Gravel Corporation, Appellants, v. Goodwin-Gallagher Sand and Gravel Corporation, Respondent. (Action No. 1.)
    
      
       Mod., 253 N. Y. 502.
    
   — Judgment reversed upon the law and the facts, with costs, and judgment directed in favor of plaintiffs, with costs, enjoining and restraining defendant from excavating on any part of the leased premises at any time in such way that the floor of the excavation be at any time higher than thirty-two feet above high-water level at the outside or face of the bank with a rise from that point, toward the back or west side of the bank, of one foot in each one hundred feet, which level must always he maintained on such floor; and also restraining the defendant from removing sand, gravel or grits from the leased premises without affording the landlord an opportunity to measure the same on vessels where it is loaded, and as it is loaded in front of or on the leased premises; also restraining the defendant from removing sand, gravel or grits from the leased premises by means of railroad ears over the railroad constructed by defendant on and from the leased premises to the plant owned by defendant. The Special Term erred in finding that defendant has not dug, excavated or removed sand, gravel or grits from the said leased premises contrary to the terms of the said lease, and that defendant has not prevented plaintiff Hewlett from malting measurements in accordance with the terms of said lease, and in finding, as conclusions of law, that plaintiffs have established no grounds for injunctive relief, and that the defendant is entitled to judgment dismissing the complaint upon the merits, with costs. The court also erred in refusing to find the uncontradicted facts as plaintiffs requested in requests numbered 14 to 25, 28 to 32, 34 to 70 and 73 to 76, inclusive. The proven facts are material to show a breach of the contract by defendant. The covenants as to the method of excavating are express conditions annexed to the grant of right to excavate, defining the method by which the right is to be exercised. The contract requires that defendant start its excavation or excavations anywhere on a level not higher than thirty-two feet at the face of the bank and maintain that level with a rise toward the interior or west of the bank of not more than one foot in a hundred, and pay for the material so excavated at eight cents per foot, maintaining that level throughout the progress of the work. The contract also requires that all material shall be measured by the landlord on vessels at the leased premises before it is taken away. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions in accordance herewith will be made. Lazansky, P. J., Rich, Young, Seeger and Seudder, JJ., concur. Settle order on notice before Mr. Justice Seeger on or before Friday, December 27, 1929.  