#### Edward H. Gillilan, survivor &c., plaintiff, *vs.*Henry G. Norton *et al.,*defendants.

1. A lessor cannot enforce the specific performance *in equity*of a covenant not to underlet, when he has the right, by the terms of the lease, or otherwise, to re-enter. In such a case he must proceed at law; or he may waive the right to enter, and recover damages for the breach. ■ ,

2. Equity will not interfere and give redress, where there are adequate remedies at law. In that respect the fusion of law and equity, by the Code, has not changed the rule.

3. A covenant, however, in a lease, not to use the demised premises for a purpose extra-hazardous on account of fire, is a subject of equitable cognizance; and a continuing breach of it will be enjoined, in order to avoid a multiplicity of actions.

4. Lessees who have underlet demised premises, in violation of a covenant contained in their lease, are responsible for the acts of their tenant. Therefore the use of the premises by such tenant for an extra-hazardous purpose is a violation of the covenant of the former not to use the premises for such a-purpose. A court of equity may not only interfere to prevent a continuance of such a violation, but may also compensate the party prejudiced, in damages, for any injuries sustained by such violation; it being a well settled prin-

. ciple-that a court of equity, having acquired jurisdiction of the subject matter of an action, for any purpose, may retain jurisdiction of it to do justice between the parties. It may therefore also aspess such damages as the lessor has sustained, and give judgment therefor.

6, To make the restraint effectual, in such a case, it is necessary to enjoin all persons engaged in violating the covenant; not only the lessees, but all others who, under them, by their authority, consent or direction, are assisting in the breach of their covenant. The action, therefore, so far as equitable relief is concernid, is properly brought against the lessees and their tenants jointly. This does not produce, a misjoinder of actions; there being but one course of action, namely, the breach of the lessees’ covenant, all the persons so made defendants are necessary parties to enable the plaintiff to obtain adequate relief • in the premises.

*5476. Although there may not he a joint judgment for damages, against all the defendants, in such an action, because there is no privity of contract between . the under-tenants and the plaintiff, (the lessor,) and there cannot he a reeovery, against them, of damages for the breach of the lessees’ contract, yet there is no difficulty in pronouncing separate judgments. The power to do so is in express terms given by the Code, (§§ 118, 274,) and is constantly exercised by courts, even in actions at law.

7. The original lessees and their under-tenants may be joined, as defendants, in • such an action—the lessees, for actually or tacitly permitting the premises to be used for an extra-hazardous purpose, whereby the plaintiff has sustained damage; and the under-tenants for being the active agents in producing the breach; and in such an action all the defendants are sought to he restrained.

(Before Monell, J., at Special Term,

January, 1867.)

Demurrer to complaint.

T-he complaint alleges a lease to the defendants Norton and Studley of-the first floor and basement of the buildings Nos. 100 and 102 Liberty street, with a covenant on the part of the lessees to use the premises for the storage and sale of India rubber goods, and that the same should not be used for any purpose deemed extra-hazardous on account of fire; that they would not assign the lease, or let or underlet the premises, without the written consent of the plaintiffs, and would yield up the premises at the end of the term in good condition. There was a right to reenter upon a breach of any of the covenants.

' The complaint then alleges that the defendants Norton and Studley, without the consent of the plaintiff, have underlet the basement and cellar of No. 102 Liberty street to the defendants George and Henry Leach, who are in possession thereof, using the same for the storage and sale of hardware; and in like manner have underlet the basement and cellar of No 100 Liberty street to the defendant William H. Disbrow, who is in possession and using the same for the storage and sale of carriages, and the stabling and sale of horses! That he has erected stalls therein, with mangers and racks, and other fixtures for the accommodation of horses, and has placed therein quantities of hay, straw, grain, &c., for food for horses, and is daily bringing into, and keeping in the basement of said No. 100 Liberty *548street numbers of horses; that the floors, walls and ceilings are injured by the urine from the horsesj and the offensive smells caused thereby; that the use of said building for stabling horses is injurious to the reputation of both said buildings, so that their value is diminished, and they cannot be let to as good advantage as otherwise they might be. That the occupation of said basement of No. 100 is also a violation of the covenants of the lease, being used for a purpose deemed, extra-hazardous, thereby increasing the rates of insurance by at least $300 a year.

The relief demanded is, that the defendants may pay the plaintiff" the damage to said buildings, a,nd that they may be restrained from all violations of the covenants of said lease, or from underletting the premises without the plaintiff’s consent, and from occupying or using the premises, or any part, for any business deemed extra-hazardous ; that the defendant Disbrow be specially enjoined from using the basement of No. 100 Liberty street for stabling horses, &c., and that all or any of the defendants, who have made any alterations to or in said premises, may restore the premises to their former condition. The complaint also asks for costs against all the defendants.

The defendants Norton and Studley demur to the complaint, alleging, *first,*that several causes of action have been improperly united, and *second,*that the.complaint does not state facts sufficient to constitute a cause of action.

*Dan Marvin,*for the plaintiff.

*W. F. Allen,*for the defendants Norton and Studley.

Monell, J.

The ground or cause of complaint against the defendants Norton and Studley, is a breach of their covenant not to underlet 'without the permission of the lessors, and not to use the premises for a purpose deemed extra-hazardous on account of fire. The covenant not to underlet was broken-by the letting of one of the buildings *549to Leach Brothers, and of the other to Disbrow. The other-covenant was broken by the use the premises let to Disbrow were put to by him, which, it is alleged, is a use deemed extra-hazardous.

A lessor cannot have relief in *equity*for a breach of a covenant not to underlet. If he has the right, by the terms of the lease or otherwise, to re-enter, he must proceed at law; or he may waive the right to enter, and recover his damages. Equity will not interfere and give redress where the remedies are adequate at law; and, in this respect, the union of law and equity by the Code has not changed the rule. All the plaintiff’s remedies for a breach of the cove-' nant not to underlet, are therefore at law.

But it is claimed that the other covenant is one of which a court of equity will take cognizance, and will enjoin a continuing breach to avoid multiplicity of actions. The , covenant is, not to use the premises for a purpose deemed extra-hazardous on account-of fire, and is substantially the • same as a covenant not to use the premises for any purpose or business other than such as is designated in the lease.

This court has frequently restrained a lessee from using demised premises in opposition to his covenant. *(Howard*v. *Ellis,*4 *Sandf. S. C. R.*369. *Dodge*v. *Lambert,*2 *Bosw.*570. *See, also, Steward*v. *Winters,*4 *Sandf. Ch.*587.) And a mere recital, in the lease, of the purpose for which the premises are let, has been held to constitute a covenant. *(DeForest*v. *Byrne,*1 *Hilt.*43.)

Horton and Studley, having underlet in violation of their covenant, are responsible for the acts of their tenant; and therefore the use of the premises by such tenant, for a purpose deemed extra-hazardous, was a violation of their covenant, a continuance of which violation a court of equity may interpose to prevent; and not only to prevent, but to compensate in damages for any injury sustained. For it is a settled principle that a court of equity, having acquired jurisdiction of the subject matter of the action, may make *550complete reparation to the parties. *(Story’s Equity Juris.*§§796,797.)

. It being competent for the court, in this case, to restrain the continued violation of the lessees’ covenant, it may also assess such damages as the lessor has sustained, and give judgment therefor.

The objection that the facts stated do not constitute a cause of action, is not, therefore, in my opinion, well taken.

The remaining ground of demurrer is, that there is an improper joinder of actions.

The alleged misjoinder of actions against the defendants Norton and Studley, I have already disposed of by showing that a lessor may obtain relief in equity, restraining a continued violation of a covenant, and also for damages.

But it is claimed that the relief demanded against the under-tenants will require a different and separate judgment, and that a cause of action which will authorize a judgment against them, cannot be united with a cause of action against their immediate landlord.

To make the injunction effectual, it was necessary to enjoin all persons engaged in violating the covenant; not only the lessees Norton and Studley, but all others who, under them, by their authority, consent or direction, were breaking their covenant: and the judgment, if the action shall be sustained, will perpetually restrain each and all of' the defendants alike. It was necessary, therefore, to prosecute not only the' lessees of the plaintiff, but all persons holding under them; otherwise the latter would be under no' restraint. So far, then, as concerns the equitable relief, the action is properly brought against the- lessees and their tenants, and -there is not, in my opinion, any misjoinder of actions. There is, indeed, but one cause of action, namely, for the breach of the -lessees’ covenant, and all the persons made defendants were necessary parties to the plaintiffs’ obtaining adequate relief in the premises.

It is suggested, however, that there cannot be a joint *551judgment for damages against all the defendants. That is probably so. There is no privity of contract between the under-tenants and the plaintiff, and there cannot be a recovery against them of damages for the breach of the lessees’ contract. But I cannot see any difficulty in pronouncing separate judgments. The power to do so is in express terms given by the Code, (§§ 118, 274,) and is constantly exercised by the courts, even in actions at law.

Taking the case, then, as presented by the complaint, it is this. The defendants Horton and Studley have broken their agreement with the- plaintiff, by actually or tacitly permitting the premises to be used for a purpose deemed extra-hazardous, whereby the plaintiff has sustained damage. The active agent in causing or making the breach is the defendant Disbrow, and we are asked to restrain all the defendants.

In respect to uniting Horton and Studley and Disbrow in the same action, I see no objection. It may be, however, that a cause of action is not shown against the other defendants. But it is not necessary to examine that question, as it is not made a ground of demurrer.

I think the plaintiff must have judgment upon the demurrer, with costs.

The defendants may have leave to withdraw their demurrer and answer in twenty days, on payment of the costs.