First Department, July, 1921. [Vol. 197 the claim that the plaintiff should be denied injunctive relief merely because by a continuance of the tenancy of the sublessees he will not have suffered irreparable damage, even though plaintiff had failed to show such damage. The provision against subletting was a condition under which the lease was granted to the defendants H. & S. Cohn, and the lease was expressly conditioned that in case the lessees should make any default in the performance of any of the conditions of the lease then the lessor might re-enter the said premises, either by force or otherwise, and dispossess and remove therefrom the said lessees without recourse to the usual statutory notices or proceedings for the removal of tenants. Inasmuch as it was made a condition of the granting of the lease to the defendants H. & S. Cohn that they should not, without the written consent of the lessor, sublet said premises or any part thereof, the plaintiff was entirely within his rights in asking the court to grant a mandatory injunction summarily ousting the sublessees. The plaintiff was entitled to injunctive relief to restrain occupancy contrary to the terms of the lease. Such relief is in the nature of specific performance and is not dependent upon the absence of adequate remedy at law. (2 Underhill Landl. & Ten. [1909] 756, 1054; Round Lake Assn. v. Kellogg, 141 N. Y. 348.) While plaintiff might have taken summary dispossess proceedings or brought ejectment for breach of the conditions of the lease, he did neither, as he evidently did not desire to terminate the lease to the defendants Cohn, and in his prayer for relief in the complaint asks that the defendants Cohn be restrained only from acts violative of the conditions of the lease. I think it does not lie in the mouths of the defendants to urge that the plaintiff will not suffer damages by reason of the subletting. The plaintiff was the owner of the premises and he had a perfect right to impose such conditions as he saw fit under which he would grant a lease of the premises to the defendants H. & S. Cohn. They accepted said lease upon the conditions therein specified and cannot now be heard to dispute the same. (Weil v. Abrahams, 53 App. Div. 316.) This is not a question as to whether the plaintiff has or has not an adequate remedy at law. He is entitled to insist that his lessees obey the terms and conditions of the App. Div. 781] First Department, July, 1921. lease under which they hold. (Chautauqua Assembly v. Alling, 46 Hun, 582; Liebmann's Sons Brewing Co. v. Lauter, 73 App. Div. 183.) The plaintiff, nevertheless, did make out a prima facie case upon the trial, showing that he had suffered irreparable damage by reason of the unauthorized acts of the defendants Cohn in subletting said premises, and is entitled to relief for that reason. It is apparent under the present condition of the calendars in New York county that, unless the plaintiff can obtain the relief by way of mandatory injunction pendente lite removing the sublessees of said premises, he will be denied any relief in this action as the lease of Hindin Bros. expires in January next. The order appealed from should be reversed, with ten dollars costs and disbursements, and plaintiff's motion for a mandatory injunction pendente lite be granted, with ten dollars costs. CLARKE, P. J., LAUGHLIN, DOWLING and GREENBAUM, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. HERMAN SCHOPFLOCHER, Plaintiff, v. THE ESSGEE Co. of CHINA, INC., Defendant. First Department, July 1, 1921. Sales action to recover for delay in delivery of goods sold - goods sold in New York city on c. i. f. contract to be shipped from Japan - goods consigned to seller and insured in his name - place of delivery was city of New York - whether buyer called for delivery at seller's place of business is question for jury measure of damages-market value in New York city at time of breach admissible - facts to be considered in determining whether goods delivered in reasonable time when buyer entitled to recover. In an action by a buyer of goods to recover damages for unreasonable delay in making delivery it appeared that both the buyer and the seller were residents of the city of New York and that the goods were to be shipped from Japan in June, July and August, 1917, in about equal shipments; that the buyer performed his agreement to furnish a letter First Department, July, 1921. [Vol. 197 of credit and pay the duty on the goods and also paid approximately $350 in order that the merchandise might be shipped by express from the Pacific coast; that the contract provided that the price stated was "C. I. F. New York;" that the goods were shipped to the seller and were insured in his own name and upon arrival in the city of New York were first stored in the customs warehouse and upon payment of duty were taken to another warehouse where they were deposited and stored in the seller's name and delivery was made by warehouse receipt from time to time. Held, that the "C. I. F. New York" clause in the contract related merely to the price of the goods and that under the facts of the case it was not intended by the parties that the contract was a strict c. i. f. contract under which the buyer would have assumed responsibility for delay in transportation, and, therefore, the place of delivery was at the office or place of business of the seller in the city of New York. It was incumbent upon the buyer to call upon the seller to deliver the goods to him at the seller's place of business or wherever the goods were in New York city, and whether or not he did so call upon the seller for delivery was a question of fact which should have been submitted to the jury. On the question of damages the buyer should have been permitted to prove the market value of the merchandise in the city of New York at the time of the alleged breach of the contract. On the question as to whether there had been an unreasonable delay in the delivery of the goods it was proper to consider the fact that in the usual course of transportation it requires, on the average, about two months for goods to reach New York city from Japan, unless the goods are shipped from the Pacific coast by express, and that the buyer paid approximately $350 for shipment by express from the Pacific coast. If the buyer was ready to accept the delivery and the goods were not delivered within a reasonable time, he was entitled to succeed upon proof of his damages. MOTION by the plaintiff, Herman Schopflocher, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after the dismissal of the complaint at the close of the plaintiff's case upon a trial before the court and a jury at the New York Trial Term, November, 1920. Burnstine & Geist, for the plaintiff. Kramer & Swartz, for the defendant. MERRELL, J.: The action is brought by Herman Schopflocher against The Essgee Co. of China, Inc., to recover damages for an App. Div. 781] First Department, July, 1921. alleged delay on the part of the defendant in delivering a large quantity of strawbraid purchased under a contract made on or about the 4th day of May, 1917. The contract in question, which was made in the city of New York, mentioned 621 Broadway, room 722, as defendant's place of business, and, so far as material, reads as follows: 'Bought from The Essgee' Co., of China, Inc., Acting Agents for Messrs. Miyake-Gumi Ltd., Kobe, Japan. 50,000 Pieces of 3' End Jap Extra Quality at 1812 cents @piece C. I. F. New York. 4/5 m /m. Artl. No. 3639. '50,000 Pieces of 3′ End Jap First Quality at 1712 cents @piece C. I. F. New York. 4/5 m /m. Atkl. No. 3639. "Duty to be paid by the undersigned purchaser at the rate of 15% upon presentation of Invoices. Quality as natural sample shown, usual variations. Shipment from Japan June, July, August in about equal shipments. "Buyer agrees to furnish a letter of credit at 4 months sight draft. "Accepted Buyer "THE ESSGEE' CO. OF CHINA, INC. Shipment has to be made via overland." M. H. Steinfels, mentioned in the contract, was a brotherin-law of the plaintiff, and it was conceded upon the trial that the plaintiff was the real party in interest. As provided in the contract, the plaintiff furnished the letter of credit therein referred to and paid the duty on the merchandise, upon a claim made by the defendant that such duty was due. The plaintiff also paid approximately $350 to the defendant in order that said merchandise might be shipped by express. The goods ran 1,000 pieces to the bale, thus making 100 bales in all. First Department, July, 1921. [Vol. 197 Evidence was given by the defendant tending to show that the merchandise was shipped from Japan substantially in accordance with the contract, and the defendant claimed upon the trial that had plaintiff called for the goods the defendant would have delivered them within a reasonable time. On the other hand, the plaintiff testified that he was almost an every-day caller at defendant's New York office, and was constantly demanding the goods, which concededly he had paid for, and that he accused defendant's representative of intentional delay and of selling his goods to other parties. It was established upon the trial that the first of the goods actually came into the plaintiff's possession September 11, 1917, and the last ten bales on August 3, 1918. The plaintiff claims damages for alleged unreasonable delay on the part of the defendant in delivering the last three lots which were delivered, respectively, on December 13, 1917, February 13, 1918, and August 3, 1918, twenty-six bales in all. It is the contention of the defendant that under the contract the place of delivery was in Japan, and that it performed its full duty by delivering the merchandise on board ship in Japan. The plaintiff, however, says that the defendant at all times understood that the place of delivery was to be in the city of New York. Plaintiff claims that he is entitled to the damages he has suffered, based upon the market price of the merchandise in New York city. While the evidence was conflicting respecting the time when the merchandise was shipped from Japan and here received, there is no dispute as to the method of shipment adopted by the defendant. As above noted, the plaintiff duly delivered to the defendant his letter of credit, thus paying for the goods in advance. The defendant shipped the goods with others from Japan, consigning and insuring them in its own name. Upon arrival in the city of New York they were first stored in a customs warehouse and upon payment of the duty were taken to the warehouse of R. H. Comey & Co. in Brooklyn, where they were deposited and stored in the defendant's name. The defendant did not disclose the name of the plaintiff to the Japanese shipper or to any carrier or warehouseman, and no evidence of title to the goods was delivered to the plaintiff, |