The action is brought to restrain the defendants from removing from leased property certain timbers, tracks, supports and other structures in a talc mine. The property had been leased by the plaintiffs to the defendant with a right to terminate the same by the defendant, and with the provision that in case of terminating the lease the party should have the right and privilege “ to take and remove any and ah buildings, machinery and tools of whatsoever nature, they may have on said premises, or may have put thereon.” The lease further provided that upon the termination thereof the said property “shall be left in. a good and workmanlike condition.” The papers show that to remove the staircases, the tracks and the supports in the mine would endanger the mine and make possible the caving in thereof and render it impossible to get the water out, thus greatly impairing its value. If this be true it would seem that it was not within the contemplation of the lease that such supports, stairs and tracks should be removed. Whether or not the lease contemplated that certain particular structures should be allowed to remain in order to leave the mine in a good and workmanlike condition, depends so largely upon the nature of those structures and Upon the necessity thereof to protect the mine and keep the walls safe from falling, that in our opinion it should properly be left to the trial for the determination upon the evidence there to be produced.
The criticism is made that the affidavits are insufficient as stating the facts upon information and belief without alleging why the affidavit of the informant is not produced. The affidavit shows, however, that defendant’s workmen were found removing the buildings and timbers, and shows their statements that they had been instructed to remove these other structures, the removal of which is claimed to impair the value of the *734mine. This information would seeni to be sufficient to authorize the granting of the injunction without attempting to get the affidavits of these parties that such was. their instruction. (See Finegan v. Eckerson, 32 App. Div. 233.)
These views lead to a reversal of the order vacating the injunction, with ten dollars costs and disbursements.
All concurred, except Kellogg, J., who concurred as to the supports, and otherwise dissented. .
Order vacating injunction reversed, with ten dollars costs and disbursements, and motion denied, with' ten dollars costs.