Smith v. Edgewood Casino Club

The bill sets forth that the complainant is the owner in fee of a certain lot of land situated on Shaw avenue, in that part of Cranston called Edgewood, with a building on the lot known as the Edgewood Casino Club; that on, to wit, June 25, 1894, he leased the same, by written lease for seven years, to the respondent, the Edgewood Casino Club; that these respondents on the same day entered into possession of, and have since been in the quiet and undisturbed enjoyment of the premises; that the lessees covenanted in the lease not to underlet the premises, or any part of them, without the consent in writing of the lessor, but that, disregarding their covenant, they have underlet the premises to the respondent Root, who has entered into possession of them and established a kindergarten school therein, and still continues in the occupation of them. The bill expressly waives the forfeiture incurred by the lessees in respect of their breach of the covenant, and prays that the club may be compelled to perform the negative covenants contained in the lease, and may be restrained by injunction from sub-letting the leasehold premises, or any part thereof, or permitting the occupation of them contrary to the lease, and that the respondent Root may be restrained from continuing in the occupation of any portion of the premises without the consent in writing of the lessor, and for general relief.

We do not think that the complainant makes a case for equitable relief. The letting to Mrs. Root by the club was a completed transaction at the time of the filing of the bill.Ireland v. Nichols, 46, N.Y. 413. There is no suggestion in the bill of any other contemplated breach of the convenant by the lessees, for the prevention of which an injunction of the court is needed.

The testimony shows that, after knowledge of the breach of the covenant, the complainant received from the club a check for rent accruing subsequently to the breach, which he has retained to the hearing of the cause. We think that this acceptance of the check coupled with its retention must be regarded as a waiver of the forfeiture. But in addition to this, as has been stated, the bill expressly waives the forfeitures incurred by the lessees by the breach of their covenant. The complainant by insisting on the forfeiture would have had a complete and adequate remedy at law, by an action of ejectment to recover possession of the premises from the lessees and their tenant, and an action for damages against the club for breach of their covenant. But his waiver of the forfeiture was in effect a ratification of the act of the club in underletting the premises to Mrs. Root, and rendered their action and her occupation legal.Ireland v. Nichols, 46 N.Y. 413; Shattuck v. Lovejoy, 8 Gray, 204.

An injunction must be denied and the bill dismissed.

After the above opinion was filed the complainant applied for a rehearing of the cause, and this application was denied December 31, 1896.