Knower v. Atkins

Cohn, J.

(dissenting). The judgment for plaintiff was proper. In a well-considered opinion the trial court set forth findings of fact all of which were fully warranted by the evidence. Plaintiff has a mere right to occupy and to use office space in conjunction with like occupancy and use by defendant. This right is an incorporeal one which might not be enforced by means of an ejectment action. The only remedy is in equity. (Brooks v. Wheeler, 243 N. Y. 28, 31.) The gravaman of plaintiff’s action as reflected in his pleadings and in his testimony was to restrain defendant from committing and continuing to commit trespasses and interference with plaintiff’s possession of the premises. Such continuing trespasses- equity may enjoin and in an action for that purpose the court can and should grant all the relief that the nature of the action and the facts demand. (Coatsworth v. Lehigh Valley Ry. Co., 156 N. Y. 451, 457.; Sadlier v. City of New York, 185 N. Y. 408, 413.) In resorting to the public authorities for assistance to secure protection against defendant’s misconduct, plaintiff committed no wrong. The trial court did not find plaintiff’s conduct inequitable but on the contrary correctly decided that defendant’s claims of plaintiff’s misconduct and breach of the agreement, were not sustained by the evidence.

The court properly concluded that although plaintiff had correctly brought his action in equity for an injunction, the difficulties between the parties rendered it inexpedient to impose upon them a decree that they practice their profession in the same office. The court therefore adapted its relief to the exigencies of the situation. It decided that justice would be best served by withholding an injunction and by awarding plaintiff the damages sustained by reason of defendant’s wrong. (Sadlier v. City of New York, supra, p. 415; Baily v. Hornthal, 154 N. Y. 648, 660; Murtha v. Curley, 90 N. Y. 372, 378.) However, the fixation of the substantial sum of $15,000 is without reasonable basis in the evidence. At the trial plaintiff attempted to amend his pleadings to allege what he termed special damages, but, upon objection, proof as to the items of damage to equipment and supplies and for loss of earnings was excluded. Proof as to damages reasonably attributable to defendant’s wrong should have been received.

The cases of Rockefeller Purchasing Corp. v. Rockefeller Center, Inc. (245 App. Div. 629, affd. 270 N. Y. 447) and Koenig v. Eagle Waist Co., Inc., (176 App. Div. 726) upon which defendant relies are not in point. In each of these plaintiff had leased premises from a landlord but the latter had refused to give possession. Here plaintiff had been in possession for almost three years up to April 20, 1946. After that date and up to the time of the trial, as the court found, he was still in possession, at least to the extent that in the leased premises he had his furniture, telephones, study models, dental instruments and other property.

The judgment should be modified by directing a new trial at Special Term solely for the purpose of assessing damages, and otherwise affirmed. (Civ. Prac. Act, § 584; United Paperboard Co. v. Iroquois Pulp & Paper Co., 217 App. Div. 253, affd. 249 N. Y. 588; Lamport v. Smedley, 213 N. Y. 82, 85; Acme Realty Co. v. Schinasi, 215 N. Y. 495, 501; Kaplan v. Krauss, 151 Misc. 123,125.)

Callahan, Van Voorhis and Shientag, JJ., concur with Dore, J.; Cohn, J., dissents in opinion.

Judgment reversed, with costs to the appellant and the complaint dismissed, with costs. Settle order on notice.