Opinion
05-16-1923
ROSEBERG v. AMERICAN HOTEL GARDEN CO. et al.
W. Elmer Brown, Jr., and Emerson L. Richards, both of Atlantic City, for complainant. John C. Reed, and Clarence L. Cole, Sr., both of Atlantic City, for defendants.
Suit by Hugo Roseberg against the American Hotel & Garden Company and others for an injunction. Writ granted.
W. Elmer Brown, Jr., and Emerson L. Richards, both of Atlantic City, for complainant.
John C. Reed, and Clarence L. Cole, Sr., both of Atlantic City, for defendants.
INGERSOLL, V. C. The defendant American Hotel & Garden Company, Which will hereafter be called the Hotel Company, is the owner of a tract of land at the northeast corner of New York avenue and the Boardwalk. Atlantic City, having a frontage of over 300 feet on New York avenue and a depth of 50 feet measured at right angles to said avenue.
A tract about 115 feet in depth at the easterly or Boardwalk end has been leased to the defendant McCrory Stores Corporation, which will hereafter be called the Stores Corp. On the 100 feet adjoining thereto is erected a three-story building known as the American Hotel, more recently called the Moulin Rouge, and will hereafter be called the Hotel, and on the remaining land was erected a one-story and basement building known as the American Garden or Cafe Bal Tabarin, and will be called the Garden.
The complainant is a tenant of the defendant Hotel Company, by virtue of a written lease entered into between them bearing date October 21, 1912, whereby the Hotel Company leased to him "premises known as No. 169 New York avenue and adjoining premises up to the Hotel space formerly occupied by Harry Katz as bar and restaurant" for a term of three years from January 1, 1922, at the annual rent of $5,000. He is in possession of said premises, which were described in an affidavit of the vice president of the Hotel Company as a hair dressing parlor occupying a small space of one room in the structure known as the American Hotel and Garden located nearest the Boardwalk on the ground floor.
On December 31, 1922, a fire occurred in the Garden and Hotel buildings seriously damaging each of them.
Shortly after the fire, repairs were made either permanently or temporarily to the Hotel in which was located the room or store occupied by complainant, and he resumed his business (that of hair dresser, etc.) and continued such until shortly before the filing of the bill.
Some time after the fire, negotiations were entered into between the defendant Stores Corp. and the Hotel Company for the leasing of the premises known as the Hotel (including that space leased to and occupied by the complainant). The president of the Hotel Company thereupon entered into negotiations with the complainant, with the result that an agreement was entered into between them as follows:
"March 27th, 1923. "We the undersigned, agree to the following I arrangements. The American Hotel & Garden Company to pay Mr. Hugo Roseberg the sum of $600, which is an electric light bill, for repairs amounting to $300, and allow him sum $300 on account loss after fire, and on completion of the new store or stores, rent of store or 2 stores to be $1,800 each. They will have the option to take one or two. We agree to install all fixtures, electric fixtures and plumbing, papering and painting, and remove all goods in old store to new. I will vacate my present store on completion of the new store.
"American Hotel & Garden Co.,
"M. Weinmann, Pres't.
"Hugo Roseberg.
"Witness: Mary O'Donnell."
On the 11th of April an agreement was entered into between the Hotel Company and the Stores Corp., whereby the former leased to the latter the property already occupied by the Stores Corp. and an additional 100 feet on New York avenue by 50 feet in depth, being the premises occupied by the hotel building, including the space occupied by the complainant, for the term of 20 years from the 1st day of May, 1923, at the yearly rent or sum of $60,000; untenanted possession to be given on May 1, 1923.
Included in the lease was the following clause:
"Lessee will immediately, upon obtaining possession of the hereby demised premises, and as rapidly as is reasonably possible, restore or rebuild the old hotel building on the rear of the demised premises, to such condition and for such legitimate purposes as the lessee may desire. It being understood and agreed that the insurance money, in the amount of not less than $15,000 accruing by reason of the recent fire, in the hotel property, on the rear of the demised premises, is to be paid to the lessee by the lessor, upon the signing of this lease, the same to be applied to the restoration or rebuilding of the old hotel building by the lessee."
On April 20, 1923, a notice was served by the Hotel Company on the complainant as follows:
"To Hugo Roseberg:
"In accordance with the act of the New Jersey Legislature, P. L. A. D. 1874, page No. 27, you are hereby notified that the rent for the premises which you now occupy, known and described as No. 167 South New York avenue, Atlantic City, New Jersey, and adjoining premises up to the hotel entrance—space formerly occupied by Harry Katz as bar and restaurant —will cease on and after the service of this notice until such time as the building shall be put in complete repair and you shall be moved into your new store. Said repairs being made necessary by reason of the damage caused by the recent fire. In order to put the building in complete repair it will be necessary for us to remove the roof and all inside structures except the front wall.
"New foundations, new footings and new steel are required to be put in.
"It will be necessary for us to proceed immediately to make these repairs. You are advised that during the course of these repairs, it will be necessary for you to secure new quarters elsewhere for the purpose of conducting your business and to remove your personal property in order that the said personal property may not be damaged by the elements or otherwise. In order to avoid loss of business to you, we have provided space in the McCrory store at the corner, where you can continue to conduct your business. We will arrange to move your personal property and appliances necessary for the conduct of your business and we will pay all cost incurred in the removing and setting up the same at the McCrory store. We will further arrange to store any additional personal property for you free of cost to you. When the new store is completed we will move the appliances used in the conduct of your business to the new store and install them free of cost to you. You will not be required to pay rent for the use and occupation of the McCrory store.
"We regret the inconvenience caused you by the damage done by the recent fire and we are anxious to have you co-operate with us in order that the inconvenience and loss will be made as light as possible.
"Very truly yours,
"American Hotel & Garden Company,
"H. Weinmann, Vice Pres.
"Dated April 20th, A. D. 1923."
On or about April 24, 1923, the following notice was served on the complainant:
'To Hugo Roseberg:
"Take notice, that your lease, made the twenty-first day of October, 1921, contains the following provisions:
"'Provided, that if any rents shall be due and unpaid, or if default shall be made in any of the covenants, conditions and rules herein contained, then it shall be lawful for the said party of the first part, at his option, without notice and without any demand for said rent, or for the performance of said covenants, conditions and rules and regulations, to declare this lease null and void and said term ended, and to reenter the said premises and remove all persons therefrom, or to proceed by action for the recovery of the possession thereof, or otherwise however.
"'And the said party of the second part doth hereby covenant and agree to and with the said party of the first part to pay the said rent in the proportions and upon the conditions aforesaid; and not to assign this lease, and further agrees to observe the following, which are hereby agreed to be not only covenants, but also rules and regulations governing said premises, viz. not to underlet said premises, or any part thereof.'
"Further take notice, that you have failed to pay the rent due April 1st, 1923, and that you have underlet a part of the premises, without written consent.
"Therefore, in accordance with the provisions above recited, and exercising the option therein reserved, the lessor does hereby declare your lease null and void, and the term ended.
"American Hotel & Garden Company, "By H. Weinmann, Vice Pres.
"Dated April 24th, 1923."
Shortly before the filing of the bill, one or both of the defendants, by employees and workmen, commenced the work of making said repairs or alterations, and at the time of the filing of the bill had proceeded so far as to leave a space in the rear wall of the complainant's premises open and exposed to the weather. All of the windows in said building had been removed so that in case of rain, or other storm, there was nothing to prevent said storms working damages to the complainant's premises.
At the time of the hearing the defendants presented a map of the premises in question and the complainant presented 5 photographs of the premises, all of which were received without objection and by consent.
Three of these photographs are indorsed as having been taken on April 23, 1923, the date of the filing of the bill and two the day following.,
These photographs show the condition of the windows as above described, and one taken the day after the filing of the bill shows a portion of the roof immediately over the Roseberg store as having been partly removed.
It perhaps should here be mentioned that on April 23, 1923, the superintendent of construction, Thomas Bleakley, was informed that the order to show cause with the restraint had been advised, and a copy thereof shown to him, and that the photos marked as having been taken on April 24, 1923, show workmen engaged in removing the roof over the complainant's premises.
It is unnecessary, however, to consider these photographs as evidential for the purpose of now considering the application before me.
In these applications for injunctions there are two elements which must be shown. One is the settled right of the complainant; the other is, that this right in the thing in dispute will be irreparably damaged if the relief be not granted. Oliphant v. Richman, 67 N. J. Eq. 280, 59 Atl. 241.
The right of the complainant is clear unless, as claimed by the defendants, he has lost same by reason of any one of the following conditions:
(1) That the defendant had the right to dispossess him for the purpose of making repairs made necessary by the fire of December 31, 1922.
Although notice was served "In accordance with the statute of Public Laws 1874, p. 27," I find that the demolition of the structure as being done by the defendant Stores Corp. is not within that statute, and cannot be justified thereby.
2. That he has defaulted in the payment of rent which became due on April 1, 1923, and
(3) That he has violated the terms of hid lease by subletting a portion of the leased premises.
If either of these acts would have been sufficient to have terminated the lease, it is sufficient to say that the agreement of March 27, 1923, was entered into after each said, alleged default or violation of terms. It is clear that an adjustment was made and money paid by the company to the complainant, an arrangement made that he was to vacate the premises in question upon the "completion of the new store or stores," which the vice president of the Hotel Company, Harry Weinmann, in his affidavit states, "is in the new structure, which is being erected on the site formerly occupied by the Cafe' Hal Tabarin," that is, the Garden property. He further states in the same affidavit, dated April 30, 1923:
"The contracts for this work have been let, and it is expected that the new stores will be completed with (in) six weeks from May 1, 1923."
The fact that the structure which is to include the "new store or stores" can be completed within six weeks, and that the contract with the defendant was dated March 27, 1923, and the lease with the McCrory Stores Corporation agreed to give "untenanted possession" of the property on May 1, 1923, is indicative that the Hotel Company expected or hoped to be able to give Roseberg possession of the new store in about five weeks from the date of the agreement.
Possession has never been given of the "new store or stores."
The fourth reason given why Roseberg should not be entitled to relief is that some time after April 20, 1923, the president of the Hotel Company called upon the complainant "and told him that I had arranged for temporary quarters for him, in the McCrory store, and that we would move him to that location, and from there to the new store, to be built by the Hotel Company, as soon as the same could be completed, all of which would be done without expense to him. But he refused to move into the McCrory store, and said he would not move anywhere, or give up the possession of the place he then occupied, and would not agree to anything, or do anything unless he was paid by the American Hotel & Garden Company $11,500; that he had been advised that the American Hotel & Garden Company had made a long-term lease with the McCrory Stores Corporation, at a large rental, and that he proposed to be paid well for the inconvenience caused him by reason of the fire," and that by reason of the complainant's statements, he is not entitled to relief in this court.
This is not well taken. The complainant had already entered into an agreement with the defendant Hotel Company, which had not been carried out, and he was at liberty to refuse to make other changes in his contractual relations, and has not by reason of his refusal to accede to the demands of the defendant, tainted himself with "unclean hands" as insisted by the solicitors of the defendants in their arguments.
I find the right of the complainant is settled in his favor.
The contention is made by the defendants that the complainant will not suffer irreparable damages, should he be compelled to vacate the premises; the claim being that each of the defendants are financially able to respond in any damages, which he could sustain, and that he must rely upon his right in the law courts, while it is true that "a court of equity will not interfere by injunction in a case of naked trespass, where there is a full remedy at law," the court has jurisdiction. Kerlin v. West, 4 N. J. Eq. 449; Ballantine v. Harrison, 37 N. J. Eq. 560, 45 Am. Rep. 667; Myers v. Kelly, 83 N. J. Eq. 474, 91 Atl. 598.
In cases where the object of the bill is to prevent an injury which will be destructive of the inheritance, or which equity deems irreparable, i. e., one for which the damages that may be recovered according to legal rules do not afford adequate compensation. Hart v. Leonard, 42 N. J. Eq. 416, p. 421, 7 Atl. 865; Morris C. & B. Co. v. Jersey City, 11 N. J. Eq. 13: Franklinite Co. v. Zinc Co., 13 N. J. Eq. 215: Zinc Co. v. Franklinite Co., 13 N. J. Eq. 322; Zinc Co. v. Franklinite Co., 15 N. J. Eq. 418; Southmayd v. McLaughlin. 24 N. J. Eq. 181; Manko v. Chambersburgh, 25 N. J. Eq. 168; Johnston v. Hyde, 25 N. J. Eq. 454; Thomas Iron Co. v. Allentown Mining Co., 28 N. J. Eq. 77; Fulton v. Greacen. 36 N. J. Eq. 216: Lord v. Carbon Iron M. Co.. 38 N. J. 452; 0liphant v. Richman, supra: Kiernan v. Jersey City, 76 N. J. Eq. 114, 74 Atl. 139: McGann v. La Breoque Co., Inc., 90 N. J. Eq. 526, 530, 107 Atl. 17:5
Chancellor Runyon, In Whitecar v. Michenor. 37 N. J. Eq. 6-14, said:
"While the jurisdiction of the court to interfere by way of mandatory injunction should be exercised with the greatest possible caution, yet where the right to restrain the violation of which the injunction is asked for is clearly made out, and there is a present want of the use of that right, the court should not hesitate. The court is always very reluctant to grant a mandatory injunction on an interlocutory application, but where extreme or very serious damage would ensue from withholding it, as in cases of interference with easements or other cases demanding immediate relief, it will be granted." Joyce. Prin. Inj. 57; Rogers Locomotive Works v. Erie R. R. Co.. 20 N. J. Eq. 379; Thropp v. Field, 26 N. J. Eq. 82; Longwood Valley R. Co. v. Baker, 27 N. J. Eq. 166.
A very similar case in the Michigan Supreme Court reversed the circuit court (in chancery), which had refused an injunction. The court said:
"The bill charges in positive language that defendant has threatened to tear down andutterly destroy the building, eject complainant, and terminate the tenancy, and complainant fears such threats will be executed unless restrained by the court.
"* * * Irreparable injury means that the injury would be a material one, in its nature serious and grievous, and such that it is extremely difficult or impossible to definitely ascertain the resulting damages and adequately make just reparation."
And held that
"Injunction will lie against the ejection of a tenant of upper stories of a building, who is not in default, and the destruction of the building during the term of the lease, to prevent irreparable injury to the lessee." Minnis v. Newbro-Gallogly Co., 174 Mich. 635, 641, 140 N. W. 980, 983, 44 L. R. A. (N. S.) 1110, bottom 1st column 1115.
The characteristics certainly marking an injury as irreparable are:
(1) That the injury is an act which is a serious change of, or is destructive to, the property it affects either physically or in the character in which it has been held and enjoyed.
(2) That the property must have some peculiar quality or use such that its pecuniary value, as estimated by a jury, will not fairly recompense the owner for the loss of it Pomeroy's Eq. Remedies, par. 495.
The same author, in Eq. Jurisprudence, par. 1357:
"If the trespass, although a single act, is or would he destructive, if the injury is or would he irreparable—that is, if the injury done or threatened is of such a nature that, when accomplished, the property cannot be restored to its original condition, or cannot be replaced, by means of compensation in money—then the wrong will be prevented or stopped by injunction."
In Camp v. Dixon, 112 Ga. 877, 38 S. E. 73, 52 L. R. A. 757, it was said:
"'Where the injury complained of is such as to destroy plaintiff's property, or render it entirely worthless for his purposes, it may properly be regarded as irreparable.' 1 Beach. Inj. § 35. In Kerr, Inj. *14, it is said: 'By the term "irreparable injury" it is not meant that there must be no physical possibility of repairing the injury; all that is meant is that the injury would be a grievous one, or at least a material one, and not adequately reparable by damages; and by the term "the inadequacy of the remedy by damages" is meant that the remedy by damages (obtainable at law) is not such a compensation as will in effect, though not in specie, place the parties in the position in which they formerly stood. If the act complained of threatens to destroy the subject-matter in question, the case may come within the principle, even though the damages may be capable of being accurately measured.'"
I think it is clear that the complainant is entitled to relief. The restraint should not be as broad as prayed for, but should be to the extent of preventing the interference with the store of the complainant until he is permitted to take possession of the "new store or stores" referred to in the agreement.
It might be said that the interest of the complainant is small as compared with that of the defendants. It is sufficient to say that, even if the interest of the complainant in a "small store" which rents for $5,000 per year should be said to be not great enough to give him an equitable claim (although it is), the entire remedy is in the hands of the defendant the Hotel Company; that is, to place the complainant in possession of the "new store or stores" which "can be completed in about six weeks."