Cuthbert v. Chauvet — 37 N.Y. St. Rep. 564

Majority

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Ophelia J. Cuthbert, Pl’ff, v. Cornelia D. Chauvet et al., Def’ts.

(Supreme Court, Chambers, New York County,

Filed March, 1891.)

Headnote

Injunction—Determination of claims to real estate.

In an action to compel the determination of adverse claims to real estate, of which plaintiff is in possession claiming to own the fee, an injunction pendente lite, under §§ 603 and 604 of the Code, will be granted against defendants who have brought ejectment suits against plaintiff affecting such land, restraining all proceedings in any of the suits last named until the final determination of the action.

Motion for injunction pendente lite.

Hoadly, Lauterbach & Johnson, for pl’flf; Donohue, Newcombe & Cardoza, for def’t, Chauvet; Charles F. MacLean, for def’t, Ives; Robert Sewell, for def’t, Schermerhorn.

The motion is for the continuance of a temporary injunction pendente lite. The complaint avers that plaintiff and the defendant, The Hew York Life Insurance & Trust Company, are owners in fee, holding requisite possession of realty therein particularly described. That defendant Schermerhorn lias pending against plaintiff and the other defendants ten actions of ejectment, and two of the defendants threaten suits of like character. All these parties claim as heirs-at-law of Francis W. Lasak, deceased, under whose last will and testament plaintiff takes her title. Each suit in ejectment involves the validity of the said will. Judgment is here demanded forever barring the defendants from all claims to any estate of inheritance, freehold, possession, reversion or remainder in the premises. Also, for a perpetual and a temporary injunction against the prosecution of pending actions and the bringing of others by defendants to enforce their claims.

This action is evidently brought under §§ 1638 to 1650 of the Code of Civil Procedure, regarding claims to real property. The learned counsel for defendants urge that no injunction pendente lite can issue, because the action is at law and not in equity,-and, whether so or not, is not within §§ 603 and 604, which prescribe rules for issuance of the writ. The position taken seems to me untenable. In Stamm v. Bostwick, 65 How. Pr., 358 , the action being under the same Code provisions, an injunction was granted, and upheld by the general term of this department, where there was danger of the plaintiff’s possession being unlawfully disturbed. Therefore the court has the requisite power.

The form of action specially provided by the cited provisions of the Code has characteristics of both law and equity proceedure. Section 1643 names a verdict, report or decision, comprising a disposition by either branch of the court.

In this view an injunction pendente lite may be granted under averments of existent and threatened litigation, the language of § 603 being sufficiently comprehensive. The plaintiff in his complaint may demand “ a judgment against the defendant restraining the commission or continuance of an act, the commission or continuance of which during the pendency of the action would pro

p. 565

duce injury to the plaintiff.” Should the case proceed as one in equity, the relief would be appropriately included in the decree, and if under § 1642, as one at law, it would be omitted, the judgment provided being sufficient. This course of procedure cannot be determined until issue shall be joined. The prosecution of a number of ejectment suits would produce certain injury to the plaintiff, with a possibility for two trials of each one.

The relief asked in this motion was prayed and granted in the New York & New Haven R. R. Co. v. Schuyler, 17 N. Y., 592 , where the numerous holders ■ of invalid stock certificates were stayed in the prosecution of suits. It is true that action was strictly in equity, their cancellation being sought. As before said, this action is in equity, until an issue of fact shall be joined, when the future procedure will assimilate to one at law. In the latter event the trial will be before a jury, and by § 1646 the unsuccessful party is entitled to a new trial within the same time and under the same circumstances as in ejectment. If no issue of fact shall be joined the trial is before the court without a jury, and results in the report or decision mentioned in § 1643.

The examination and citation of the many adjudications, upon the subject of multiplicity of suits, and bills quia timet, is not called for, because the question raised is whether or not, under the §§ 1638 to 1650 and 603-604, an injunction pendente lite should be given. With the mode thus provided to finally determine the rights and claims common to all in one action, it would be unjust to permit the institution and prosecution of many independent suits involving the same question, and entailing intolerable burdens of labor and expense.

Motion granted.