and 100 New York State Reporter fendant to use his name in that business. Howe v. Searing, 6 Bosw. 354; Reeves v. Denicke, 12 Abb. Prac. (N. S.) 92; Morgan v. Schuyler, 79 N. Y. 490. See note 35 Am. Rep. 546. It would seem to be a proposition hardly requiring argument that every man is the custodian of his own reputation, and is entitled to say who shall do business, and what business shall be done, under his name. If it were necessary, however, to point out specific and substantial injuries which the plaintiff is exposed to by reason of the unauthorized acts complained of. it would not be difficult to do so. He is, for example, subject to the cost and vexation of suits that might be brought against him by reason of things that may happen in the business carried on in his name. So, too, he might suffer detriment in case he should engage in future in some other line of business, and seek to obtain his former patrons as customers, whom he might then find prejudiced against him by reason of the acts now being done in his name. Without going further, it is enough to say that the injunction should be continued. Motion granted, with $10 costs. (53 App. Div. 393.) MAY et al. v. GILLIS. (Supreme Court, Appellate Division, Second Department. July 17, 1900.) LANDLORD AND TENANT-DESTRUCTION OF BUILDING BY WEATHER-TENANT'S COVENANT TO REPAIR. Where a tenant covenants in his lease to make all outside and inside repairs, he waives the operation of Laws 1896, c. 547, § 197, providing for a surrender of leased premises when they have been destroyed or so injured by the elements as to be untenantable. Appeal from trial term, Kings county. Action by Nathan May and others, partners as May, Levy & May, against Constant Gillis. From a judgment for plaintiffs entered on a verdict directed by the court, and from an order denying a new trial, defendant appeals. Affirmed. Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ. E. D. Benedict (John F. Brush, on the brief), for appellant. WILLARD BARTLETT, J. The principal question in this case is whether the defendant, who was a tenant of the plaintiffs, is relieved from his liability for rent under the lease between the parties by virtue of the operation of section 197 of the real property law, which is substantially a re-enactment of chapter 345 of the Laws of 1860 (Laws 1896, c. 547). That section reads as follows: "Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased or occupied; and he is not liable to pay to the lessor or owner, rent for the time subsequent to the surrender." The leased premises consisted of a main building having a width of 46 feet fronting on Broadway, near Granite street, in the present borough of Brooklyn. The lease was for three years, beginning on May 1, 1897. In November, 1898, a part of the building, which is described as having formerly been a bowling alley, and as being a kind of shed, 13 feet wide, collapsed in consequence of the weight of the snowfall upon the roof. After this accident the defendant refused to pay any more rent, on the ground that in consequence thereof the premises had become untenantable and unfit for occupancy, and he was therefore entitled to the protection of the statute cited. It is doubtful whether, in any view of the case, the damage was extensive enough to interfere with the occupation of the leased premises as a whole, but it is unnecessary to pass upon this question. The lease expressly bound the lessee to maintain the premises in repair. The language of the instrument is, "All inside and outside repairs to be made by said party of the second part." This agreement is plainly broad enough to include the obligation to make good the disastrous effects of the snowfall under which the shed gave way. "A general covenant is binding upon the tenant under all circumstances. If the injury proceeds from the act of a stranger, from storms, floods, lightning, accidental fire, or public enemies, he is as much bound to repair as if it came from his own voluntary act. Such has been the settled rule since the time of Edward III. If the tenant desires to relieve himself from liability for injuries resulting from any of the causes above enumerated, or from any other cause whatever, he must take care to except them from the operation of his covenant." Polack v. Pioche, 35 Cal. 416, 422. In the present case no such exception can be found, and it is clear that the effect of the covenant on the part of the lessee was to render the section of the real property law which authorizes a surrender when the leased property ceases to be tenantable unavailable in his behalf. It follows that the tenant was rightly held liable for the rent. Judgment affirmed, with costs. All concur. and 100 New York State Reporter ACKERMAN v. TRUE. (Supreme Court, Appellate Division, First Department. December 7, 1900.) 1. EASEMENTS-OBSTRUCTION-JUDGMENT. Permanent damages in lieu of an injunction, prayed against an unlawful obstruction to a lot owner's easement of light, air, and access, cannot be granted, where the person maintaining the obstruction is a mere private individual, not invested with the right of eminent domain. 2. SAME. A judgment which awards permanent damages against a party maintaining an unlawful obstruction to a lot owner's easement of light, air, and access, and also confers authority to apply for additional damages on a contingency, is unauthorized. 8. SAME-DAMAGES-RIGHT TO ASSESSMENT BY JURY. Where a lot owner brings a suit in equity to enjoin another from maintaining illegal structures, which extend over the building line of the street, and obstruct the light, air, and access appurtenant to plaintiff's property, defendant is entitled to have the damages claimed in such a suit assessed by a jury when he makes a timely demand therefor. Appeal from special term, New York county. Action by Charlotte Y. Ackerman against Clarence F. True. From a judgment for plaintiff (66 N. Y. Supp. 140), defendant appeals. Reversed. Argued before VAN BRUNT, P. J., and HATCH, O'BRIEN, INGRAHAM, and MCLAUGHLIN, JJ. Alfred B. Cruikshank, for appellant. HATCH, J. This action was brought to obtain a judgment declaring six dwelling houses erected by the defendant upon the east side of Riverside Drive, between Eighty-Second and Eighty-Third streets, in the city of New York, to be unlawful obstructions to the public highway, and an unlawful interference with plaintiff's easements of light, air, and access, and for a mandatory injunction against maintaining the same, with damages. Briefly stated, the material facts are as follows: The plaintiff is the owner of a lot situated on the northeast corner of Riverside Drive and Eighty-Second street. She also owns a house and lot on Eighty-Second street adjoining the lot mentioned. The defendant owns the lot fronting on the drive lying north of, and adjoining, the plaintiff's lot. Riverside Drive is a public highway, and a part of Riverside Park. The plaintiff's lot is vacant. In the spring of 1898, the defendant began the erection on the east side of the drive, between Eighty-Second and Eighty-Third streets, and immediately adjoining plaintiff's lot on the north, of a row of first-class private dwelling houses, six in number, each having a swell front extending from the ground to the roof, five stories, and each projection being of different shape, and extend ing or projecting about four feet beyond the building line. The house next the plaintiff's premises projects into Riverside Drive about three feet six inches, and the others project in irregular shape, the extent of the projections differing, but all extending over the building line into the street. It is contended by the defendant that the houses were erected pursuant to plans filed with the building department of the city of New York, and approved by both departments. The question whether or not the park commissioners consented to the erection was sharply contested, and the court has found that the alleged consent is invalid; but as, in our view, the case must be decided upon other grounds, this question will not be discussed. The court below has found and decided that the projection of defendant's buildings beyond the line of the street is illegal, without authority, and constitutes a public nuisance; that such projections are detrimental to the plaintiff, and damage her lot, interfering with light, air, and access appurtenant to the lot, and with plaintiff's property rights in the street. The injunction prayed for is denied, but damages are awarded to the plaintiff in the sum of $2,500 for injury to her lot, and judgment has been entered accordingly; which judgment, in addition to the relief mentioned, provides that “if at any time hereafter a building is erected upon the plaintiff's said lot by the plaintiff or her grantees, and the person so erecting said building desires to, but is unable to, obtain lawful permission and authority to project the same as far into Riverside Park or Drive as the projection of the defendant's buildings extends, the plaintiff or her successor in interest shall have the right to reopen this case, and to recover the additional damage then sustained by them because of the interference with the light, air, and access appurtenant to said building or buildings to be erected because of said unlawful encroachment of the defendant's buildings in said drive or park, and that the plaintiff or her successors in interest, the owners of her said lot, may apply at any time, at the foot of this judgment, for such further relief as may be necessary or proper to render this judgment effectual." It is clear that this judgment cannot be upheld. The only relief which the court had authority to grant in this action was to award a mandatory injunction, if the evidence showed that the defendant was maintaining an illegal structure in the street from which the plaintiff sustained substantial damage, together with an award of such damages as she had sustained up to the time of the entry of the judgment. Pappenheim v. Railroad Co., 128 N. Y. 436, 28 N. E. 518, 13 L. R. A. 401. Where the right to institute proceedings in invitum exists, the court has power, in an equitable action, to determine that the en and 100 New York State Reporter croachment is of such a character as will constitute it a continuing trespass, and, so determining, a judgment may be awarded assessing the permanent damage, and directing a conveyance of the fee upon its payment, together with such past damages as have been sustained, not exceeding the period of six years. These principles have been so frequently stated and applied, and have become so well settled, that any discussion of them would now be out of place. Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. 536. Such rule, however, never applied to individuals or corporations not vested with authority to invoke the power of eminent domain. Stowers v. Gilbert, 156 N. Y. 600, 51 N. E. 282. In such case the plaintiff elects, if he come into equity, to take, as his sole relief, the injunction for which he prays, and such damage as he has sustained up to the time of the judgment, not exceeding six years. If he desires damages, he must seek them upon the law side of the court, and is therein limited to such as he has sustained up to the date of bringing his action, and for the continuous trespass he may maintain successive suits if he sustain damage therefrom. Covert v. City of Brooklyn, 13 App. Div. 188, 43 N. Y. Supp. 310. These principles have been violated in this case, for here the court has denied the injunction, and proceeded to assess for the permanent damage sustained. In addition to this, the provision of the judg ment confers authority, upon a contingency, to apply for further damages, and continues the same in the plaintiff and subsequent grantees of the property. For such provision there is no authority. A judgment which a court is authorized to pronounce must be either final or interlocutory. It is difficult to determine in what category this one falls. It is not final, because further damages may subsequently be granted. It is not interlocutory in a legal sense, because no interlocutory judgment granting this relief is authorized in such a case. It is evident that it is not a legal judgment, because it may not be sustained upon any legal principle of which we are aware. As the award was of damages and nothing else, it is also evident that the court was without power to assess them. The defendant was entitled upon such question to a trial by jury, and of it the plaintiff could not deprive the defendant by bringing his action in equity, nor could the court assume the function of assessing damages against the protest of the defendant. Libmann v. Railway Co., 59 Hun, 428, 13 N. Y. Supp. 378. The plaintiff may waive his right to a trial by jury by bringing his action in equity, but this fact does not deprive the defendant of his constitutional right in this respect. Cogswell v. Railroad Co., 105 N. Y. 319, 11 N. E. 518. The defendant made demand for a trial of the question by a jury, |