Engle v. Owen. II. The preceding point being correct, the plaintiff's course of proceeding was by this action. Where a lessee covenants for a particular use of demised premises, equity will restrict him, without an irreparable or even a substantial injury being shown, by a breach of the covenant-and if no pecuniary damage can be shown or estimated, then especially is it the duty of equity to interfere, and give a specific relief to the party injured. Proof of a single instance of breach is sufficient to entitle the plaintiff to an injunction, and as it is scarcely possible to estimate the injury sustained by violations of this kind, bills to restrain acts of this character will not be frowned upon by the Court. (Steward v. Winters, 4 Sand. Ch. R. 587; Sarle v. Sarle, 3 Sand. Ch. R. 601; Kane v. Vandenburg, 1 John. C. R. 11; Corning v. Lowerre, 6 John. C. R. 439.) III. Judge Duer's conclusions, therefore, are manifestly wrong on his own premises. If opening the door in the wall was such a breach of the lease as to justify the decree he did make, it was clearly wrong in putting off the remedy for seven years and until the defendants' lease had expired; and they did not then want it any longer, and we were entitled to the possession of the premises and could help ourselves. If the other acts complained of are improvements, they are by that very term alterations, for it is hard to conceive of improvements which are not alterations-if there are no alterations there can be no improvements, for things would then be in statu quo. If, then, there were these acts of the defendants, and to redress them the plaintiff had to come into court, and the defendants contested every inch and attempt to justify their conduct, the plaintiff is entitled to his costs, and Judge Duer was wrong in refusing them. (2 R. S., p. 604, § 79.) M. G. Harrington, for Respondent. BY THE COURT. BOSWORTH, J.-The plaintiff demised certain premises to the defendants for ten years, from the 1st of May, 1850. The agreement was signed by both parties, and contained among others these provisions, viz. "the premises to be preserved in tenantable order or condition by the lessees, no Engle v. Owen. alteration to be made without the consent of the lessor in writing." The complaint stated that certain alterations had been made without the plaintiff's consent, and that the defendants intended to make further alterations. It does not aver that those made have been, or may be, injurious, or that those intended will be of that character. It prays judgment, that the "defendants do put the said premises in the same order and situation that they were at the time the lease was given within a reasonable time, or that in default thereof this plaintiff be at liberty to cause the same to be done under the direction of a referee, and have execution against the said defendants for the expense of doing thereof." There is no difficulty in restraining the defendants from making further alterations; but it is physically impossible to put the premises "in the same order and situation that they were" at the time the lease was executed. The extension built can be pulled down, and all new materials that have been added can be removed, but the old materials cannot be restored, and if they could be, the court would not interfere to compel it to be done. Such an act could be of no benefit to the plaintiff. If the alterations made can be shown to be an injury to the plaintiff, he has a perfect remedy by action to recover the damages. So far as the alterations that have been made can be regarded as a breach of the contract, it is a breach which cannot be repaired by placing the property in the precise condition in which it was before the alterations were made. That is impossible. The court will not attempt to do things substantially impracticable, and which, if done as nearly as is practicable in the nature of things, would not only be a great injury to the defendants, but would render the premises less, rather than more, valuable to the plaintiff. There is no principle of equity, jurisprudence, nor of public policy, which can justify a court in attempting to exercise such a power (9 Law & Equi. R. 249; 6 Simons, 340). The lease does not provide that a breach of this part of the agreement shall work a forfeiture, or entitle the lessor to re-enter, nor does it provide what the consequences shall be. There is no Herring v. Hoppock. complaint that the premises are used for any purpose other than that for which they were hired, nor that the alterations made do not render the premises more valuable intrinsically, or for the business for which they were designed, or for any future use contemplated by the plaintiff. If the plaintiff claimed damages for the alterations made, he should be allowed to make proof of damage, and if the proof established damage, compensation should be given in this action. If the plaintiff prefers, before going into such proof, to wait until after the effect of the alterations had been tested by time, the judgment should be so modified that he shall not be prejudiced by the finding in this suit, that as matter of fact, what has been done consists of repairs which actually improve the building, instead of alterations which are prohibited by the lease. We think the judgment should be so modified as to absolutely prohibit all future alterations, but without prejudice to the plaintiff's right to bring an action to recover damages for any alterations that have been made, unprejudiced by any judgment in this action, that they are in fact beneficial and not an injury. If the plaintiff prefers to make and try that claim in this action, he should be permitted to do so, and allowed to amend his complaint as may be proper for that purpose. Unless he makes such an election, a judgment will be entered modifying the judgment appealed from as above suggested, and in other respects affirming it, with costs. SILAS C. HERRING v. ELY HOPPOCK. When, by the express terms of a contract of sale, the title is not to vest in the purchaser until the price is paid, the title of the vendor is not divested until payment made, notwithstanding time for payment is given by the contract, and there is a delivery of the property when the contract is made. Herring v Hoppock. A creditor of the purchaser who levies an execution against him on the property during the term of credit and sells it out and out, is liable to the vendor for its value, if the purchaser fails to pay within the term of credit given by the contract, when he sells with notice of the facts. A surety in an indemnity bond exacted by and executed to the sheriff, to protect him against the consequences of such a levy and sale, and to induce him to sell notwithstanding the claim, is also liable, without evidence of any other interference in respect to the levy or sale. (Before OAKLEY, Ch. J., BOSWORTH and SLOSSON, J.J.)' Jan. 16; 26, 1854. This action was brought to recover the value of an iron safe, delivered by the plaintiff to Brooks & Hopkins under the following agreement: "NEW YORK, Feb. 6th, 1852. "Received from Silas C. Herring, one Patent Salamander Safe, No. 4910, delivered to us this day, under a bargain for the sale thereof, and for which we have given our note at six months for two hundred and thirty-five dollars. "And it is expressly understood that, said Herring neither parts with nor we acquire any title to said safe until said note is fully paid. And in case of default in the payment thereof at maturity, said Herring is hereby authorized to enter our premises and take and remove said safe, and collect all reasonable charges for the use of the same. (Signed) BROOKS & HOPKINS, 117 Liberty St." On the 26th of June, 1852, the Sheriff of New York levied two executions upon the safe, which executions were on judg ments recovered against Brooks & Hopkins, one of which was in favor of Hoppock, and the other in favor of Thomas Jackson. The deputy who levied the executions was notified that the safe belonged to the plaintiff, and thereupon required a bond of indemnity from each execution creditor, which was given July 6, 1852. Hoppock signed the bond in his own case as principal, and Jackson's as surety. Each bond was the same in form. The condition of the latter was as follows: Whereas the above bounden Thomas Jackson did obtain judgment in the Supreme Court of the city and county of New Herring v. Hoppock. York, against James P. Brooks and Charles R. Hopkins, for the sum of five hundred and eighteen dollars, whereupon. execution has been issued, directed and delivered to the said Thomas Carnley, as such sheriff, requiring him, out of the personal property of the said judgment debtors, to satisfy the judgment aforesaid. And whereas certain personal property that appears to belong to the said James P. Brooks and Charles R. Hopkins, is claimed by some other person or persons. Now, therefore, the condition of the above obligation is such, that if the above bounden Thomas Jackson shall well and truly save, keep and bear harmless, and indemnify the said Thomas Carnley, and all and every person and persons aiding and assisting him in the premises, of and from all harm, let, trouble, damage, liability, costs, expenses, suits, actions, judgments, special proceedings and executions that shall or may at any time arise, come, accrue, happen, or be brought against him, them, or any of them, as well for the levying and making sale under and by virtue of such execution of all or any personal property, which he or they shall or may judge to belong to the said judgment debtor, as well as in entering any shop, store, building, or other premises, for the taking of any such personal property, then this obligation to be void, else to remain in full force and virtue. THOMAS JACKSON, [L. S.] Sealed and delivered in the presence of L. D. BEARDSLEY. Witness to Ely Hoppock and R. A. Robertson, WM. H. BOGERT. The Sheriff subsequently sold the property levied upon, first selling property other than the safe, which produced enough to satisfy Hoppock's execution, and the expenses of the sale, and subsequently sold the safe. The sale was before the note of Brooks & Hopkins to the plaintiff matured. After it matured, the proceeds of all the sales were appropriated by the deputy, first to pay Hoppock's execution in full, and the balance on |