I concur with my brother Landon in his opinion as to all subjects discussed by him thereinafter considered.
The summary proceeding here enjoined had its basis on the writing between the parties of July 5, 1882. The defense interposed in such proceeding by the present plaintiffs, Becker & Engle (their defendants) was, that such written agreement was void for fraud in its procurement.
Before the final order, in favor of the present defendant, the plaintiff in said proceeding, was signed by the officer before whona it was conducted, this action was brought for a double purpose, first, to have the written agreement adjudged fraudulent and void ; and, second, to enjoin the further .proceeding to remove the present plaintiff as tenant in default thereunder.
The referee, before whom this action was tried, found for the *261plaintiffs, that the paper was void for fraud, directed its cancellation ; also, that the defendant be enjoined from further action i the proceeding having for its basis such void instrument.
Now, I accept the conclusion reached by the referee and approved by my brother Landon in his opinion, that the written instrument was void for fraud; and I further concur in the conclusion reached by the learned judge that the invalidity of that instrument, because of fraud in its procurement, was proper matter of investigation in the summary proceeding. I am of the opinion that this point is determined in the People v. Howlett (76 N. Y., 574). It is there said, in approval of the doctrine laid down in Roach v. Cosine (9 Wend., 228), that the cases tend in the direction of permitting evidence going behind the formal character of the instruments in order to ascertain the real nature of the transaction, and a remark is added, which, here as there, has especial signification: It is to
be observed, however, that in proving the letting the real facts were developed,” etc. Thus, in this case, the proving of the instrument opened up and let in the proof which showed it void for fraud. It may be well to quote further from the case cited, as the reasoning is here applicable: “ It is urged that the tenant can only prove what is admissible under a simple denial of the facts, and that usury can never be shown unless pleaded. We think that this construction is too narrow. Usury renders the lease void. It is not a lease, and there can be no tenancy by virtue of a nullity, and a denial of the lease, and the tenancy entitles the party to prove the facts which render it void. He may show that it was obtained by duress under such denial.” (P. 580.) These remarks have direct application, as I think, to the subject under consideration. I am, therefore, of the opinion that proof to the effect that the instrument, relied on as a basis for the summary proceeding against the plaintiffs was void for fraud in its procurement, was competent matter of defense in that proceeding. But I am further of the opinion that, although there admissible, hence subject to review on appeal, it does not follow that this action will not lie in its present form and for the purposes for which it was instituted. The ground of action is the alleged fraud in the procurement of the writing, and the relief sought is its cancellation because of such fraud. This end could not be attained in the summary *262proceeding. Tlie ground of action is, too, undoubtedly of equity cognizance.
The conrt had jurisdiction in the case. Now, having jurisdiction as to the gravamen of the action and the relief sought to be obtained, all collateral matters growing out of it, within the scope of the equitable powers of the court, were matters to be redressed if justice so demanded. If need be, the Court of Equity will extend the remedy in the particular case so as to make relief complete. So, if an instrument be adjudged void, it may and should enjoin all future action based upon it.
Holding to this view of the case, I think the judgment should be affirmed, with costs.