Goldman v. Corn

Clarke, J.:

This is an appeal by the defendant Corn from an order enjoining him from in any manner interfering with or preventing the.plaintiffs from taking possession of and occupying the tenth loft or eleventh floor of the premises 110 and 112 Fifth avenue in the city of New York. The complaint alleges that-on or about O.ctober 14, 1903, the defendants Deitsch and the defendant Corn entered into a lease whereby Corn leased, the tenth loft of the building 110 and 112 Fifth avenue to the Deitschs for five years, commencing February 1, 1904; that the lease provided for a renewal for a further period of five years, at the option of defendants Deitsch; that said defendants entered into possession and duly performed all the covenants on their part to be performed; that on the 31st of August, 1905, the plaintiffs made an agreement in writing with the defendants Deitsch, whereby the defendants Deitsch leased to the plaintiffs the demised premises for the term of eight years, commencing February 1, 1906 ; that on the 29th of November, 1905, the plaintiffs entered into a further agreement with the 'defendants Deitsch, whereby said defendants gave to the plaintiffs the right to immediately enter into possession of and to occupy said demised premises ; that the defendant Corn has refused, and still refuses, to permit the plaintiffs to enter into possession of and to occupy the said demised premises, and has wrongfully excluded, and continues to unlawfully exclude, the plaintiffs from the same; that by reason of the matters aforesaid the plaintiffs will sustain irreparable loss and damage; that these plaintiffs have no adequate or sufficient remedy at law for the protection of their rights in the premises.

This complaint is framed in equity as a case where the right to an injunction depends upon the nature of the action, and if the facts set up would entitle the plaintiffs to a judgment for such relief, then the issuance of an injunction pendente lité is authorized by section 603 of the Code of Civil Procedure.

The basis of plaintiffs’ claim is that Corn has prevented them from taking possession of the demised. premises under an agreement made by plaintiffs, not with. Corn, but with the Deitschs. If the Deitschs are unable to give them possession of the premises, undoubtedly plaintiffs would have án action against the Deitschs for damages for breach of contract, and the Deitschs would have. an action for damages against Corn for breach of the lease with them, inasmuch as there is no restriction against their subleasing. But I do not understand that ordinarily an action in equity lies to - enforce the right of possession under a lease. The damages are^. clearly ascertainable and may be enforced in an action at law. The plaintiffs seem to .have been of tins, opinion, for they have alleged “ that by reason of the matters aforesaid the plaintiffs will sustain irreparable loss and damage,” and they have set up in their affidavits facts and circumstances which, if alleged in the complaint, might - have been sufficient to entitle them to the reinedy therein demanded, and só warrant the order here appealed from. But the complaint contains no s.uch matter.

In Heine v. Rohner (29 App. Div. 242) Presiding Justice Van. Brunt said : “ It is to bp observed that the question of the right to an injunction of this character depends-upon the allegations of the complaint, and that unless it appears from the complaint that the plaintiff is entitled to the judgment of injunction, it cannot issue. (Code Civ. Proc. § 603.) It may all be yery true that evidence may be 'offered in the shape of affidavits to Support the allegations of the complaint, but where the complaint itself - shows no cause of action or right to relief, such right cannot "be established by affidavit.”

In McHenry v. Jewett (90 N. Y. 58) Chief Judge Andrews, said :■ “ The mere allegation- of serious, or irreparable injury apprehended or threatened, not supported by. facts or circumstances tending to justify it,. is clearly insufficient. Neither injury to the plain tiff’s.property, inadequacy of the legal remedy, or any pressing ' or serious emergency, or danger of loss, or other special ground of jurisdiction is shown by the' complaint. The complaint, therefore, does not show that the plaintiff is entitled to final relief by injunction. * * * .It is doubtless sufficient that a probable, or caso be made to justify the- granting of an injuncjinn pendente Ute, but where, as in this case,' it clearly appears that the complaint shows no cause of action, then a preliminary injunction is unauthorized and the granting of it is error of law which may be reviewed by this court on appeal.”

In Brass v. Rathbone (153 N. Y. 435) it was said : “ The only allegation in their complaint, however, is that the discontinuance of the supply of water to their premises would work a great hardship to the tenant and.produce great and irreparable injury to the plaintiffs. But no facts are stated in the complaint justifying that conclusion. The mere allegation of great or irreparable injury apprehended or threatened which is not supported by facts or circumstances tending to justify it is clearly insufficient. Therefore, the complaint does not show that the plaintiffs were entitled to relief By injunction.”

It follows that the complaint in this case not setting up facts sufficient to warrant the final judgment of injunction, it was error to grant the in j unction pendente lite.

Order reversed, with ten dollars costs and disbursements, and injunction vacated, with ten dollars costs. ■

Ingraham, J., concurred.