2. Equity 47(1)-Lessees' assignee held precluded from suing lessees, lessor, and new lessee in equity on cancellation of assigned lease, in view of adequate remedy at law.

Cancellation of lease for violation of covenant prohibiting the assignment of the lease without lessor's written consent did not entitle assignee to bring an equitable action against lessor, lessees who had assigned lease, and the lessee to whom a new lease had been executed subsequent to the cancellation of the old lease, for possession of the premises and for damages, since, if assignee was entitled thereto, possession could be obtained in an action of ejectment against new lessee, and since relief could be had against the other defendants in actions at law for damages; the assignee having adequate remedy at law.

3. Equity 51(1)-Suit will not lie against several defendants to avoid a multiplicity of suits, where there is no community of interest between defendants.

Cancellation of lease for violation of covenant against assignment without lessor's written consent held not to entitle assignee to bring equitable action against lessees, lessor, and lessee to whom new lease had been executed, on theory that such action would avoid a multiplicity of suits; there being no community of right or interest in the subject-matter of the action between lessees and the lessor and lessee to whom new lease was executed.

Action by Leo Finkenberg, Inc., against the Crompton Building Corporation and others. Judgment dismissing complaint as against all defendants.

Samuel J. Goldberg, of New York City (I. N. Jacobson, of New York City, of counsel), for plaintiff.

David L. Podell, of New York City (J. J. Podell, of New York City, of counsel), for defendants Schulman et al.

Bernard Fliashnick, of New York City, for defendant Crompton Bldg. Corporation.

Snitkin & Goodman, of New York City (L. A. Snitkin, of New York City, of counsel), for defendant Mintz.

DAVIS, J. The defendant Crompton Building Corporation is the owner in fee of the premises No. 31 East Thirty-First street, a building having 12 lofts and a penthouse on the rear half of the roof. The building is occupied by merchants in the ladies' garment trade. The defendant Mintz, a manufacturer of dresses, was the lessee of the twelfth floor and penthouse, under a lease expiring February 1, 1920. The plaintiff Finkenberg is the occupant of the loft on the tenth floor under an assignment of a lease expiring January 1, 1923. About a year before his lease expired, Mintz opened negotiations with the defendant landlord for the renewal of his lease of the twelfth floor and penthouse. The landlord offered him a five-year lease at a rental of $10,000 a year. Mintz refused to bind himself for more than a threeyear term. The negotiations with Mintz thus came to an end, and thereafter, in March, 1919, the loft and penthouse then occupied by Mintz were leased to defendants Schulman and Hauptman for five years, beginning at the expiration of Mintz's lease, at a rental of $10,000 a year.

For other cases see same topic & KEY-NUMBER in 'all Key-Numbered Digests & Indexes

(195 N.Y.S.)

By the terms of the lease to Schulman and Hauptman, the latter covenanted "not to assign this lease or underlet the said demised premises without the written consent of the lessor first had and obtained." Then follows a provision for the landlord's re-entry in case of failure to keep the covenants of the lease. Notwithstanding the inhibition. against an assignment of the lease without the written consent of the landlord, the defendants Schulman and Hauptman, in June, 1919, by written assignment, transferred the lease to the plaintiff for $10,000, of which amount $3,500 was paid by Finkenberg to Schulman and Hauptman on the execution of the agreement to assign (June 3d), together with $833.33, the first month's rent. The remaining payments were to be made as follows: $2,000 on February 1, 1920; $2,000 on July 1, 1920; and $2,500 on February 1, 1921. On July 25, 1919, the attorney of the defendant landlord notified the plain-. tiff that the landlord intended to insist upon a strict compliance with that provision of the lease forbidding its assignment without the written consent of the landlord. On August 19, 1919, the defendant landlord gave notice to the defendants Schulman and Hauptman of its cancellation of the lease to the latter because of their violation of the covenant against assigning without the landlord's consent. At the same time it returned to Schulman and Hauptman the check deposited with it for the first month's rent. Immediately thereafter the defendant landlord leased the said twelfth floor to the defendant Mintz for a term of five years from February 1, 1920, and the lease was recorded on August 25, 1919. The defendant Mintz is still in possession of the loft in question. On October 15, 1919, the penthouse also was leased to Mintz for five years under a lease which was duly recorded, and he is now in possession thereof under the last-mentioned lease.

It is conceded that the landlord did not consent in writing to the assignment of the lease by Schulman and Hauptman to the plaintiff; but it is claimed by the plaintiff and by defendants Schulman and Hauptman that the defendant landlord waived its right to declare a forfeiture of the lease, and that by acquiescence in the assignment thereof as made he is estopped from questioning the validity of the assignment. The plaintiff asks for a judgment requiring the defendants landlord and Mintz to deliver possession of the said twelfth floor and penthouse to the plaintiff, and for an injunction restraining the defendants landlord and Mintz from interfering with plaintiff's possession during the term of the lease to Schulman and Hauptman. Plaintiff also asks for damages against these defendants landlord and Mintz for the withholding of the premises. As an alternative, in case he is not entitled to a judgment against the landlord and Mintz, plaintiff asks for a judgment rescinding and canceling his agreement with defendants Schulman and Hauptman, under which he took an assignment of the latter's lease, and for the return of the money he paid therefor. [1] It is clearly established by the evidence that both the plaintiff and defendants Schulman and Hauptman knew from the outset that they would have to come to an understanding and financial arrangement with the defendant landlord in order to obtain its written consent to the assignment of the lease to plaintiff. Notwithstanding,

plaintiff took the assignment with the risk of failing to get the necessary consent. He was warned by his attorney against such a course, but rejected this advice with the remark that he would take the chances. Thereafter he made several attempts to induce the landlord to give his consent, but his negotiations were not successful. In this action he ingeniously urges the incidents of these negotiations with the landlord as a basis of a claim of waiver and estoppel and consent to the assignment on the part of the landlord. In my opinion he has failed to sustain any of these claims, and his complaint should be dismissed as to the defendants Crompton Building Corporation and Mintz.

Nor do I think that equity can afford him any relief as against the defendants Schulman and Hauptman. Both parties were wagering upon the chances of getting the landlord's written consent to the assignment. Both were willing that the provisions of the lease should be violated and were satisfied to take the chance of inducing the landlord to overlook it. For these reasons the complaint as to defendants Schulman and Hauptman should be dismissed.

[2, 3] The defendant Mintz and the Crompton Building Corporation ask that the complaint be dismissed for the reason that plaintiff has an adequate remedy at law. In this contention I think the defendants are right. If plaintiff has a good lease, he can gain possession in an action of ejectment against Mintz. If Schulman and Hauptman induced the plaintiff to accept the assignment of the lease upon the promise to obtain the landlord's consent, and failed to fulfill their agreement, plaintiff has a complete remedy at law against them. And if the defendant landlord leased the premises to Mintz in disregard of plaintiff's rights as assignee of the lease to Schulman and Hauptman, he can bring an action at law for damages against the landlord. Plaintiff's answer to these objections is that he has a right to bring the action in equity in order to avoid a multiplicity of suits. A prerequisite to that course is stated in the case of Warnock Uniform Co. v. Garifalos, 224 N. Y. 522, 121 N. E. 353, as follows:

"Among the defendants there is neither community of right or interest in the subject-matter of the action, nor community of interest in the questions of law and fact involved in the general controversy. * The plaintiff

naturally desires to avoid vexation, expense, trouble, and delay by a consolidation, in effect, of the independent causes of action at law into one cause of action in equity. This it cannot have.

In the present case it may be that the defendant landlord and defendant Mintz have a community of interest in the questions involved, but defendants Schulman and Hauptman's interest therein has nothing. in common with that of the other defendants.

For these reasons, also, the complaint should be dismissed as against all of the defendants. Findings passed upon.

Judgment accordingly.

(118 Misc. Rep. 789)

(195 N.Y.S.)

GOLDSMITH v. JEWISH PRESS PUB. CO.

(Supreme Court, Special Term, New York County. June, 1922.)

1. Injunction 102-Will not be granted against an act merely because it is a misdemeanor.

An injunction may not be granted against an act which is wrongful only because a statute makes it a misdemeanor.

2. Injunction 13-Certified public accountant held not entitled to enjoin publishing false advertisement, where his business was not shown injured.

Equity will not, at the instance of one authorized under General Business Law, § 80, to be styled and known as a certified public accountant, enjoin a newspaper publisher from publishing any advertisement containing the words "Certified Public Accountant," or the letters "C. P. A.," applied to any person not authorized to assume such title or use such letters as an abbreviation, though the insertion of such advertisement is a misdemeanor under Penal Law, § 421, and though such publication be continued after notice of falsity of the advertisement; there being no proof that it injured plaintiff's business.

Action by H. Ely Goldsmith, on behalf of himself and all other persons duly authorized by the provisions of section 80 of the General Business Law to assume within the state of New York the title "Certified Public Accountant," or use the abbreviation, "C. P. A.," who shall desire to become parties hereto, against the Jewish Press Publishing Company. On motion for preliminary injunction. denied.

Woodward, Dennis & Buhler, of New York City, for plaintiff.
Phineas Lewinson, of New York City, for defendant.

Motion

LEHMAN, J. The plaintiff is a public accountant and auditor, authorized under section 80 of the General Business Law (Consol. Laws, c. 20) to be styled and known as a certified public accountant, and he seeks to enjoin the defendant from publishing any advertisement containing the words "Certified Public Accountant," or the letters "C. P. A.," applied to any person not authorized to assume such title or use the abbreviation "C. P. A." The statute makes a violation of section 80 of the General Business Law a misdemeanor, and section 421 of the Penal Law (Consol. Laws, c. 40), relating to untrue and misleading advertisements, is undoubtedly sufficiently broad to cover the insertion in a newspaper of an advertisement by a person who has not received a certificate from the regents of the university in which such person assumes the title of certified public accountant. It is clear that the penal statute is directed against the advertiser, and not the publisher of the newspaper, who ordinarily can have no personal knowledge of the truth of the advertisements he publishes in his newspaper, and, unless he chooses to censor such advertisements himself, he is not required to do so by law.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

It is urged, however, that when a newspaper publisher has notice of the falsity of an advertisement, and still continues to publish it, he becomes an accessory to a misdemeanor, and in this case the plaintiff has given the defendant notice that it is publishing advertisements of five parties who use the title "Certified Public Accountant," or the abbreviation "C. P. A.," in connection with their names, though they have never received a certificate from the regents of the university, yet the defendant has continued to publish these advertisements. Some of these advertisements contain other letters in connection with the abbreviation "C. P. A.," which it is claimed show that the title of certified public accountant was granted, not by the University of the State of New York but by some other body. Since the argument of the appeal the Court of Special Sessions has held that such use of this abbreviation is not a misdemeanor. It is not necessary for me to consider upon this motion the correctness of that decision, for it was conceded upon the argument that at least one advertiser uses no such distinguishing letters, and the right of the plaintiff to an injunction may be determined upon the undisputed fact that the defendant is continuing after notice to publish this advertisement.

[1, 2] The continued publication, after notice, of an unlawful advertisement, is undoubtedly an improper act, and for the purpose of this motion I shall assume, without, however, attempting to decide, that it makes the publisher an accessory to a misdemeanor. A court of equity has power in a proper case to enjoin an act in spite of the fact that a criminal proceeding against the act will also lie; but this is the first application which has come to my notice where a court of equity is asked to grant an injunction against an act which is wrongful only because a statute makes that act a misdemeanor. The plaintiff would be entitled to an injunction against any wrongful act for which the law gives no sufficient redress, and which constitutes an injury to his business; but in the present case there is no evidence that the unlawful advertisement does injure the plaintiff's business. The Legislature, not for the purpose of creating a monopoly or new property rights, but for the protection of the public, has enacted a statute providing that only persons proving their qualifications may represent themselves as certified public accountants. It has by statute created a new offense and provided the remedy for such offense through the criminal courts, and it could by statute destroy the offense, without touching any property right of the plaintiff.

The plaintiff has received the certificate of the regents, and though the value to him of his title may be diminished, if others continue to use it without right, yet it is not shown that through such continued user any business to which he personally is particularly entitled is wrongfully withdrawn, and even the value of the title itself to him. is problematic, and must to a great extent depend upon his own personal ability to obtain and retain clients. He is entitled to demand that the law be enforced in the manner directed by the Legislature, but he shows no personal right and no personal injury which would permit a court of equity to grant an injunction.

Motion denied, with $10 costs. Ordered accordingly.