Potter v. Potter — 59 A.D. 140

Majority

p. 140

Mary Potter, Respondent, v. Israel Potter, Appellant.

Headnote

Injunction — in-an action by one tenant .for life against Ms cotenant for a determination as to their respective rights, for an accounting and a receiver—c an under - tahing should be given.

Where the complaint in: an action' alleges that, under the terms of a certain agreement, the plaintiff a'nd the defendant áre in possession of certain premises as tenants for life, and demands judgment that the plaintiff’s interest be fixed and determined; that the defendant be restrained from interference with- her estate and, if necessary, that a receiver be appointed and that an account be taken and. stated between the parties as to the said agreement, upon the ground that they were partners as to the possession of the premises, the court may,, in its discretion, grant an order enjoining the defendant pendente lite from maintaining or continuing summaiy proceedings to evict the plaintiff from the possession, of the premises described in the complaint. .

Section 2265 of the Code of Civil Procedure, which provides that^ the order shall be granted upon the same terms as an injunction order in an action of eject-ment, requires that the injunction order be made-conditional upon the filing; of the undertaking specified in section 620 of the Code of. Civil Procedure,, which, it seems, is applicable to ah injunction order in ejectment.

-Appeal by the defendant, Israel Potter, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 10th day of September, 1900; enjoining the defendant, pendente lite, from interfering with the plaintiff in her possession of the property-described in the-complaint and from maintaining or continuing summary proceedings to-evict the plaintiff from said premises. ■. .

William T. McCoun, Jr., for the appellant.

Allan. M. Stoddart, for the respondent..

This is an appeal from an order granting an injunction pendente lite, restraining the defendant from interference with the realty named in the complaint, and particularly from instituting, maintaining or continuing any summary proceedings to evict or dispossess the plaintiff from possession thereof, and enjoining and restraining a certain justice of the peace of Oyster Bay, county of Nassau, from •continuing or taking any further action in summary proceedings pending before him wherein the defendant herein is plaintiff and landlord, and the plaintiff herein is defendant and tenant. Plaintiff complains that under a certain executed agreement she is in possession of the premises as tenant for life with the defendant, and ■demands judgment that her interest be fixed and determined; that the defendant be restrained from interference with her estate, and, if necessary, that a receiver be appointed; that an account be taken and stated between the parties as to the said agreement upon the ground that the parties were partners as to the possession of the premises, and for such other relief as may be just. Section 2265 of the Code of Civil Procedure provides that such an injunction shall not be granted except in a case where an injunction would be granted to stay the proceedings in an action of ejectment brought by the petitioner and upon the like terms. While the amendment of section 2244 of the Code of Civil Procedure, made in 1893, permitted the defendant in summary proceedings to set forth a statement of any new matter constituting a legal or equitable defense or counterclaim, and the establishment thereof as if the claim for rent in such proceedings was the subject of an action, has made many of the decisions rendered prior thereto of no force as precedents, still there are undoubtedly cases where the propriety of the exercise of such power is plain. (HeAdam Landl.-& Ten. [3d ed.] 14-26, and cases cited.) Proceedings in an action of ejectment, which is made the test (Code Civ. Proc. § 2265), will not be enjoined where the question involved can be determined at law, or where the ground relied upon in the -injunction would be available in the defense thereof. (Chadwick v. Spargur, 1 Civ. Proc. Rep. 433; High Inj. § 325.) In Siemon v. Schurck ( 29 N. Y. 598 , 614) the court recognized the propriety of the institution of a suit to restrain an action of ejectment, although it was sufficiently plain that the plaintiff might have

p. 142

defended the ejectment suit under the equitable title claimed by her, on the ground that she desired and obtained more comprehensive-relief than she could obtain in that suit. In Quinn v. Quinn (46-App. Div. 241, 242) we said that the question to be determined- in summary proceedings must always be whether the relation of landlord and tenant exists, and whether the landlord or tenant has the present right of possession. I think that there is enough shown in the plaintiff’s case to warrant the learned Special Term, in the exercise of its discretion, to grant this injunction, and that the order may be affirmed inasmuch as there may possibly be equities between the respective parties beyond the mere determination of the question of landlord and tenant, and the right of possession under that-relationship. Of course, I express no opinion whatever upon the. merits of any controversy between the parties. While the order-may be upheld on the ground of a fair exercise of discretion, it is,, I think, defective in that no undertaking is required. Section 2265-requires that such order shall be granted upon the like terms that-attach to an injunction order in ejectment. I find no express pro-' vision in the Code that defines those terms, but I think that section 620 is applicable. (Gilman v. Prentice, 11 Civ. Proc. Rep. 310 Chadwick v. Spargur, supra, note on p. 436 et seq. See, too, San Remo Hotel Co. v. Brennan, 64 Hun, 607 , 613 et seq.) The order of the Special Term is reversed, with ten dollars costs and disbursements, unless the plaintiff apply to the Special Term within ten days, upon notice to the defendant to determine and to fix upon a. proper undertaking, and unless the plaintiff, “within ten days after the determination of the Special Term, comply with any order that may be made by the Special Term in the prémises, in which event, the order is affirmed, without costs of this appeal to either party.

All concurred.

Order reversed, with ten dollars costs and disbursements, unless, the plaintiff apply to the Special Term within ten days, upon notice, to the defendant to determine and to fix upon a proper undertaking, and unless the plaintiff within ten days after the determination off the Special Term comply with any order that may be made by the. Special Term in the premises, in which event the order is affirmed,, without costs of this appeal to either party.

Cases cited

Siemon v. Schurck 29 N. Y. 598 N.Y. at 614 p. 140