
    SUPREME COURT.
    Edward Stamm, respondent, agt. George H. Bostwick, appellant.
    
      Injunction affecting realty—When may he issued— Code of Civil Procedure, sections 608,1638.
    Where, in an action brought under section 1638 of the Code of Civil Procedure to compel the determination of a claim to the property adverse to that of the plaintiff, it appeared that the defendant was actively interfering with the possession by plaintiff of the premises in controversy, an injunction may be issued under section 608, and that immediately following it.
    
      First Department, General Term,
    
    
      June, 1883.
    
      Before Davis, P. J., Brady and Daniels, JJ.
    
    Appeal from an order denying a motion to dissolve an injunction.
    
      Lewis Johnson, for appellant.
    
      Paul F\dler, for respondent.
   Daniels, J.

— This action is brought under the authority of section 1638 of the Code of Civil Procedure, which authorized a person who has been in actual possession of real estate, or whenever he and the person from whom the estate has been derived have held possession for a term of three years under the circumstances therein mentioned, to maintain an action to compel the determination of a claim to the prope: ty adverse to that of the plaintiff. And it is clearly contemplated by the provisions enacted to control the proceedings in the action that the plaintiff should be continued in the possession during the pendency. Eor that reason, where there is danger of his possession being unlawfully disturbéd or molested in the meantime, an injunction may be issued under section 608 of the Code of Civil Procedure, for the case will then be one where the disturbance of his possession during the pend-ency of the suit would produce injury to him. And it appears by the affidavit sustaining the application for the injunction that the defendant not only designed but was actively interfering with the possession of the premises in controversy. And as that has not been denied the case was clearly one for an injunction within the section last referred to and that immediately following it. The action is not within the cases which have been decided relating to the right of the tenant to restrain by injunction summary proceedings brought to recover possession of demised premises, for that was not its principal object. The purpose of the suit was to determine the conflicting claim of the defendant to the property in controversy, and the restraint imposed upon his proceeding was incidental only to the complete accomplishment of the purposes of the action, and for that end the injunction was entirely proper. It was also carefully guarded by the direction requiring the deposit of the rents with the Union Trust Company to the credit of the action, and accordingly no possible injury can be sustained by the restraint imposed upon the defendant. It was claimed in his behalf that as a recovery of rent was had in his favor in the court of common pleas against one of the tenants, and the plaintiff was present in the court during a portion of the trial, that his claim of title had in that manner been virtually decided against him. But this position cannot be maintained for he is not a party to that action, and the mere circumstance that he was present observing the proceedings without the right to produce witnesses or cross-examine those sworn on behalf of the defendant will not affect him by the result of the trial.

The order in the case should be affirmed, together with ten dollars costs besides disbursements.

Davis, P. J., and Beady, J., concur.  