Agnew v. Whitney

1 Foster 360

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: September 20, 1873
• Status: Published

Opinion

Opinion delivered September 20, 1873, by

Paxson, J.

The ex parte injunction heretofore issued in the above case must be continued for the reason that the boiler, which the defendant proposes to remove, clearly comes within the terms of the fourth section of the lease, wherein it is provided that in case the tenant should “make any. alterations or improvements of the said premises and appurtenances demised, the same are not to be removed by him, but shall belong and be surrendered to the lessor at the end of the term.” The boiler in question was for the purposes of the brewery, and was certainly an alteration or improvement; perhaps both.

It is true the defendant sets up a parol license to remove the boiler. In the face, however, of the positive prohibition of the lease, such license should be very clearly made out by competen^ evidence. If, as was alleged, the boiler cost upwards of four thousand dollars, it was certainly very remiss in the lessee not to have procured the assent of the lessor in writing to its removal. The latter is now dead, and it is sought to establish the alleged parol license by the affidavits of' the original lessee and his assignee. It is at least doubtful, whether, under the act of 15th of April, 1869, Purdon, 624 pl. 16, either of these gentlemen is a competent witness as to any admissions or agreement of the deceased lessor* But without deciding what is not necessary for the purposes of this motion, I am clear in my judgment that in view of the fact that the lease prohibits the removal of this boiler, the defendant should be enjoined until his right thereto is established in a judicial proceeding.

The injunction is continued until the further order of the court.