Flood v. E. L. Goldstein Co.

SHAW, J.

This is an appeal from an order dissolving a-preliminary injunction. The order was made upon the complaint and affidavits filed in behalf of the defendants and counter affidavits filed on behalf of the plaintiff.

In the consideration of an appeal from an order made upon-affidavits, “if there is any conflict in the affidavits, those in-favor of the prevailing party must be taken as true, and the-facts stated therein must be considered as established.” (Doak v.

Bruson,

152 Cal. 19, [91 Pac. 1002], and cases there cited.)

The restraining order enjoined the defendants from wrecking and removing the building upon a certain lot described, and from excavating and removing the soil under and around' the building and from removing the plaintiff's implements and furniture from the building. The lot belonged to the E. L. Goldstein Company. The defendant, H. H. Yard, was the lessee thereof under a lease extending to May 31, 1907. Plaintiff, on July 7, 1906, became a sub-tenant of Yard, of" one room in the building, under an agrément which he claimed.

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was a lease of that room from that date to May 31, 1907, at a rental of fifty dollars per month, payable in advance on the first day of each month, and which Yard claimed created a tenancy from month to month only. Arrangements were made in September, 1906, by the Goldstein Company with other defendants, in pursuance of which it was proposed to cancel the lease to defendant Yard, remove the building from the lot and erect a large hotel building thereon. Notice was given by Yard to the plaintiff on September 14,1906, that from and after October 1,1906, the rental of the room he occupied would be one thousand dollars per month. On October 1, the plaintiff having refused to pay the increased rent, Yard served upon him a notice to quit and deliver up the possession of the room within three d.'.ys. Plaintiff refused to yield possession. Thereafter, about November 1, 1906, the Gold-stein Company began preparations for the erection of a new building and for the destruction and removal of the old building. Excavation was begun for the basement of the new building and continued until the ground was excavated in front of the old building to a depth of six to eight feet below the street level. About November 17th the destruction of the old building was commenced. The water-pipes and gas-pipes, were disconnected, possession was taken of the entire building, the floors of nearly all the rooms were taken up, and the attic-story of the house and a large part of the roof, and all the-doors in the house were removed. The greater part of this-destruction took place on November 18, 1906, and on that day all of the property of the plaintiff was removed from the room formerly occupied by plaintiff, the agents of said company took possession of that room, and took up and removed the floor and windows, leaving it obviously uninhabitable, and completely ousting the plaintiff from possession. The following day, November 19th, the plaintiff began the action for an injunction and obtained the aforesaid preliminary restraining order, without notice to the defendants.