Opinion
June 4, 1948.
Benjamin S. Kalnick for plaintiff.
Lesser Lesser for defendant.
Plaintiff-tenant moves for an injunction pendente lite in aid of his suit for a permanent injunction restraining the defendant-landlord from interfering with his asserted right to maintain a television aerial on the roof of a multiple dwelling apartment house, and for a judgment declaratory of his rights.
Irrespective of the merits of the controversy and the rights of the parties as they ultimately may be determined, it appears without dispute that the aerial already has been removed. Under the circumstances, the temporary relief sought would be futile. Equity will not do a vain thing ( Prentiss v. Bowden, 145 N.Y. 342, 346; Gueutal v. Gueutal, 113 A.D. 310, 313).
Furthermore, there are substantial issues in dispute which should be left to be resolved at the trial. Some of these are: whether the terms of plaintiff's original lease (still controlling even though his status be that of a statutory tenant) forbade the exercise of this attempted right without the landlord's written consent; whether the asserted right is reasonably necessary to plaintiff's use and enjoyment of the demised premises and may be construed as "appurtenant" thereto (see in this respect Bauer v. Schwartz, 122 Misc. 630, 631; Schmidt v. Louis, Inc., 122 Misc. 249, 253; 1 McAdam on Landlord and Tenant [5th ed.], § 86, p. 330 et seq.); whether, if such be the case, the attempted use is excessive (the aerial erected is stated to have been a metal pole eight feet high with four cross bars each six feet long, supported by iron clamps drilled into the brick extension of the side wall of the building — and this by only one of fifty-nine tenants); and whether the attempted "use" was impliedly consented to or sanctioned by the landlord.
Because of the doubt that exists in the mind of the court as to the right of the plaintiff to install and maintain a television aerial on the roof, the court will not prohibit the defendant from removing the aerial should the plaintiff again install it.
The motion for an injunction pendente lite is denied. Submit order.