This appeal presents a question as to the sufficiency of the allegations contained in an amended complaint which was served pursuant to the permission granted by this court on the affirmance of an order dismissing a prior complaint. (245 App. Div. 704.)
In its prayer for relief the plaintiff demands a judgment against the defendant that the latter be enjoined from interfering with plaintiff in taking possession of certain premises and also from discontinuing or withholding the listing of plaintiff’s name on the bulletin board in the building wherein the premises are located. The effect of the holding at Special Term and in this court upon the prior appeal was, that plaintiff was not entitled upon the facts pleaded in the original complaint to equitable rehef since it had an adequate remedy at law.
We do not beheve that the amended complaint spells out a cause of action which would entitle the plaintiff to rehef upon the equity side of the court. The additional allegations which are set forth in paragraphs nineteenth, twentieth, twenty-first and twenty-second fall far short of indicating that the plaintiff is entitled to the judgment of injunction which it sought, or even to specific performance.
*631It appears that one Isidore Mitchell on the 30th day of January, 1935, entered into an agreement of lease with the appellant, Rockefeller Center, Inc. Under its terms which are to be found in the twenty-ninth paragraph, the appellant as landlord consented “ to the assignment of this lease by the tenant to a stock corporation to be duly organized under the laws of the State of New York.” Thereafter, Mitchell assigned all his right, title and interest in the lease to the respondent, Rockefeller Purchasing Corporation. When this corporation came into being, whether before the 30th day of January, 1935, or later does not appear. It is sufficient to say,- however, that the appellant has refused to give possession to the respondent apparently because of its corporate name. Whether or not the respondent was organized for the purpose of deceiving the public and leading its patrons to believe that it was in some way connected with the appellant, Rockefeller Center, Inc., is a matter which should be given consideration in determining whether or not equitable relief should be ultimately granted. The new allegations which are to be found in the nineteenth and twentieth paragraphs indicate quite clearly that it is the purpose of the respondent in the use of its name to take an unfair advantage in trading with the public, of the name “ Rockefeller ” in connection with its business. These paragraphs read as follows:
“ Nineteenth. Upon information and belief that the use and occupation by the plaintiff of the premises described in the aforementioned lease are of peculiar and particular benefit and advantage to the plaintiff in that said leasehold premises are located in a , building which would give the plaintiff certain benefits which would not otherwise readily be obtainable by it in any other building or buildings.
“ Twentieth. Upon information and belief that such benefits consisted of a transient patronage of a large number of local people and patrons attracted to Rockefeller Center, by reason of its fame and reputation, which would in turn afford the plaintiff large opportunities for business or trading with such persons which would not otherwise exist in any other location.”
We have been unable to find a reported case in this or any other jurisdiction where equity took the possession of real estate from one party and gave it to another by mandatory injunction. Neither the respondent nor its assignor, Isidore Mitchell, has ever been in possession of the premises. In 1 McAdam on Landlord and Tenant (5th ed.) we find the following legal principles stated at page 431: “ Equity will not take the possession of real estate from one party and give it to another by mandatory injunction. Where a tenant is denied possession by his landlord he has a full and adequate *632remedy at law either in ejectment, or it would seem by summary proceedings under the Civil Practice Act, or by an action for damages in which the tenant can recover not only the difference between the rent reserved and the actual rental value of the premises for the stipulated term, but also such other proximate damages as naturally would flow from the refusal of the landlord to give possession under the covenants of the lease.” This statement finds support in a decision of this court in Koenig v. Eagle Waist Co., Inc. (176 App. Div. 726).
It follows, therefore, that the order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the amended complaint granted, with ten dollars costs.
Martin, P. J., Merrell and Townley, JJ., concur; Untermyer, J., dissents and votes for affirmance.