In denying .the application for an injunction pending suit, the learned judge at Special Term placed his decision upon the ground that the plaintiff was in effect asking for the specific performance of an agreement for the construction of a building, and that the injunction prayed for : was to prevent a building from being constructed in. any other way than in accordance with certain plans and specifications by which he would be furnished with a store in that building of a certain character and dimensions. The facts appearing upon the motion are very simple and are well established, so far as the plaintiff’s right is concerned. Under contracts he was entitled to have a lease of a' corner store on the large plot of ground mentioned in the complaint. It appears that in order to secure that store he had taken from the Astor estate a lease of the whole plot. That lease was transferred by assignment until it finally became the property of the defendant Curran. Running through all the transfers, the plaintiff’s right to a corner store in a building to be erected was recognized and preserved, and that he has a right to some kind of a store at that corner is not disputed by these defendants. The plaintiff had plans and specifications for that store prepared by his architect, and these defendants knew of those plans and specifications. The plaintiff never abandoned, his right to the store, and while he máy have assented to a theatre being erected upon the whole plot,, it- is apparent that he never waived in any way his right under his contracts which was of vital importancé to him, namely, the securing for the preservation of his business a store suitable for that business at the corner of the "plot of ground he had acquired, originally from the Astor estate solely with that object in view. That specific performance of an agreement to furnish a store of particular dimensions in "a building not existing, but to. be con*197structed, would not be affirmatively decreed, is a proposition which does not apply, and that proposition does not militate against the power of the court to restrain the defendants from violating rights which have been secured to the plaintiff by his contracts, and subject to which rights the transfer of the lease of the whole premises to the defendant Curran was made, and this particularly in a case in which it would be impossible to recover adequate damages at law. Even where specific performance will not be decreed, an action may properly be maintained for an injunction against the breach of contracts. (Standard Fashion Co. v. Siegel-Cooper Co., 30 App. Div. 564; affd., 157 N. Y. 60.) Here the plaintiff parted with his lease of the whole plot, taking back a sealed contract that he was to have the store in any building to be erected. There are no express negative covenants binding the defendants, but that does not affect the jurisdiction of the court. The doctrine is stated in Pomeroy on Specific Performance (§ 24), as follows: “ The rule has since been extended to cases in which the contract contained no negative stipulation, and it is now settled that such a negative clause is not a necessary prerequisite to the exercise of the jurisdiction.” This is said of contracts for personal services, but the principle is the same in this case. ' I think it is clear that the plaintiff would be entitled' to relief in this action, and the merits of this case loudly call for it. An injunction should have been issued.
The order should be reversed, with costs, and an injunction pending suit granted to prevent the defendants from constructing a building in such a way as to deprive the plaintiff of the right to a store of the character and dimensions and situation of that projected upon the plans prepared by his architect.
Order reversed, with ten dollars costs and 'disbursements, and motion for injunction granted, with ten dollars costs to abide event. The amount of the undertaking to be determined upon settlement of order.
Van- Brunt, P. J., Hatch and Laughlin, JJ., concurred; Ingraham, J., dissented. .