Silas K. Williams and Edward Chismore, Appellants, v. David Getman, Jr., Respondent

Silas K. Williams and Edward Chismore, Appellants, v. David Getman, Jr., Respondent. Third Department, June 27, 1906. Landlord and tenant — action against landlord for instigating other tenants to enjoin plaintiff from using premises — when complaint states cause of action. A complaint alleging that the plaintiffs leased the upper floor of a building from the defendant for use as a skating rink, expended money in putting it in condition for that purpose, and carried on the business with no more noise than is usual to such use, and that the lessor instigated other tenants occupying lower floors to perpetually enjoin the plaintiff from using the premises as a skating rink, and that the plaintiffs, after a request made to the defendant, to defend the injunction suit, were charged with the cost of that action, states a cause of action, and a dismissal of the complaint is error. This is so although the plaintiffs, after being perpetually enjoined and deprived of the use of tbe premises, paid a portion of the rent. Appeal by the .plaintiffs, Silas K. Williams and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 24th day of February, 1906, upon the dismissal of the complaint by direction of the court after a trial at the Fulton Trial Term, and also from an order entered in said clerk’s office on the 12th day of February, 1906, denying the plaintiffs’ motion for a new trial made upon the minutes. This is an appeal by the plaintiffs from a judgment dismissing ■their complaint upon a trial before the court and a jury, and the order denying'their motion for a new trial upon the minutes of the court. The complaint showed that the defendant rented to the plaintiffs “Choral Hall” for a term at a monthly rental, with the agreement that the same shall be used as a skating rink, the defendant to put a hard wood maple floor in the hall and keep the same in condition. They entered into possession, spent about $1,500 in making the necessary repairs and improvements, and began using the hall as a skating rink and were receiving a profitable patronage. The first and second floors of the building presumably under said hall had been previously leased by the defendant to Weed & Willoughby as a dry goods store, and two days after the skating rink was opened the said Weed & Willoughby, at the instigation and request of the defendant, commenced an action against the plaintiffs, alleging that the noise of the skating rink annoyed and disturbed them in the possession of their property under the lease and ivas detrimental to their business, and that the use of said building as a skating rink was a nuisance, and that their right to the first and second floors of the said building ivas paramount by the terms of their said lease, and that they were in possession conducting their store at the time of the plaintiffs’ lease, and they prayed an injunction and obtained a temporary injunction restraining the use of said hall as a skating rink. The plaintiffs notified the defendant of said action and requested him to defend it, which he neglected to do. They defended same hut it resulted in an adjudication in favor of the plaintiffs therein to the end that the plaintiffs were evicted from said hall for the purpose of using the same as a skating rink and enjoined perpetually from using the same for that purpose, and they were charged with costs of ninety-seven dollars. Thereafter plaintiffs paid fifty dollars rent although deprived of the use of the hall. It also appears that the skating rink was “ in all things properly conducted and used and no more noise was made therein or came therefrom except such as usually and naturally comes from the use of a-hall as a skating rink.” The defendant answered, a jury was impaneled and sworn, and the complaint was then dismissed upon the defendant’s motion, as not constituting a cause of action. Arleigh D. Richardson and Henry V. Borst, for the appellants. William C. Mills and J. Keck, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : Taking the facts as alleged in tlie complaint as true, as we must for the purposes of this appeal, it is clear that a cause of action was alleged. The plaintiffs rented the hall for a particular business, fitted it up for that business, and were carrying on the business in a proper maimer, with no more noise than is necessary and usual in that business. At the instigation of the lessor they were perpetually enjoined from carrying on that business on the pretense that Weed & Willoughby were prior tenants of the floors below, and that the business carried on above was detrimental to their business and an improper use of the hall. The fact that rent was paid for some months after the perpetual injunction was granted does not change the situation. The plaintiffs were deprived of the real benefit which they had intended to derive from the lease, and the defendant is responsible for such interference with their business. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellants to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellants to abide event.