#### George Chase, Plaintiff, v. The Traitel Marble Co., Defendant.

(Supreme Court, New York Special Term,

August, 1900.)

Covenant to furnish steam power — Construction — Injunction, for extra power used, refused.

A covenant to provide power to propel a particular amount of machinery relates to the quantity of power and does not restrict its use to the precise machinery specified in the covenant.

Where a lessee, entitled to certain steam power from his landlord, does not exceed that amount and the machines which the lessee has *377added do not affect the leased building more than would the machinery specified in the covenant, the landlord cannot enjoin the lessee from using his added machines pending an action by the former to recover for extra power used.

Motion to continue an injunction *pendente lite.*The action was brought by the plaintiff against the defendant, as assignee of a lease of the plaintiff’s premises, on which the latter, among other things, covenanted with the lessee “to .furnish sufficient steam power to run two gangs of saws, one rip saw, one planer, one rubbing bed, one polishing machine and one Riehle machine.” The plaintiff alleged that the defendant had, in violation of the covenant, taken and converted power for other machines which it had attached to the power sh¡aft, running from the boiler and machinery on the adjoining premises of the plaintiff; that thereby "said machinery and boiler has been subjected to a greater strain, and that the plaintiff had been obliged to procure more coal, all to his damage in $2,000.

Hieronymus A. Herold, for motion.

Geopel *&*Raegener (Herbert Heinsheimer, of counsel), opposed.

Giegerich, J.

It by no means clearly appears that the plaintiff has a cause of action based upon the defendant’s acts as disclosed. The continuance of the injunction would, I fear, he greatly to the prejudice of the defendant, in view of the fact that the operation of the machinery, alleged to be an invasion of plaintiff’s rights, has been open and continuous for the past six months, and important contracts to do work have been made by the defendant in reliance upon the continued operation of the machinery as at present in use. Indeed, so far is the plaintiff from making out a cause of action to the extent required by the rule laid down in Warsaw Water Works Company v. Warsaw, 4 App. Div. 509, to entitle him to the relief sought, that it may he said that a good defense is established by the answering affidavits. While these concede that steam power is being taken from the shaft and used for operating some machines not enumerated in the lease, they also state, which statement is not controverted, that certain machines so enumerated in the lease are not operated, and that the machines substituted in their place consume substantially no greater quantity of power than they would *378if in use. That a contract for power sufficient to propel a particular amount of machinery relates to the quantity of power, and does not restrict its use to the precise machinery specified, is established by high authority in this State. Cromwell v. Selden, 3 N. Y. 253; Mudge v. Salisbury, 110 id. 413, and Hall v. Sterling Iron & R. Co., 148 id. 432, and cases there cited. That the defendant has kept, substantially within its contract rights, as thus interpreted, is not denied by the plaintiff. It ought, perhaps, to be added that no claim is made that the running of the substituted machines has any greater or different effect upon the building of the plaintiff than would the running of the machines enumerated but not operated, the complaint being based solely upon the quantity of power consumed.

Motion denied, with ten dollars costs.