
    Theodore S. van Reimpst, Appellant, v. Lorenz Weiher, Respondent.
    First Department,
    April 8, 1909.
    Injunction — landlord and tenant—-restraining legal action pending determination of equity suit — undertaking.
    While a tenant, sued in the Municipal Court of the city of New York for rent, may plead as a defense that he was induced to enter into the lease through the fraud of the landlord, that court cannot give complete relief, and the further prosecution of said action will be restrained by injunction pending the determination of a suit brought by the tenant for the cancellation of the lease for fraud, upon the giving of an undertaking securing the payment of rent due or to become due in case the plaintiff shall not be successful.
    Clabke and Scott, JJ., dissented, with opinion.
    
      Appeal by the plaintiff, Theodore S. van Keimpst, from an order of the Supreme Court, made at the Dew York Special Term and entered in the office of the clerk of the county of Dew York on the 30th day of October, 1908, denying the plaintiff’s motion for a temporary injunction.
    
      Allan S. Campbell, for the appellant.
    
      Joab H. Banton, for the respondent.
   Houghton, J.:

The action is brought to rescind and cancel a lease which the plaintiff claims he was induced to enter into through the fraud of the defendant. On discovery of the fraud the plaintiff vacated the premises and the defendant brought action in the Municipal Court for installments of rent. The plaintiff moved at Special Term to enjoin the prosecution of such action for rent until the determination of this action for cancellation of the lease, and tendered an undertaking to pay any judgment ultimately recovered in the Municipal Court. Such injunction was refused and we think improperly.

While it is true that this plaintiff, as defendant in the action for rent in the Municipal Court, could set up the defense of fraud, complete relief could not be given him in that court. The Municipal Court would have no jurisdiction to declare the lease void and order its cancellation. The plaintiff sets forth facts in his complaint which, if satisfactorily established, may entitle him to a cancellation of the lease. If the lease shall be declared void such a decree would end all controversy. Although a judgment in the Municipal Court in favor of the present plaintiff might be a bar to the recovery of future installments of rent it would not prevent the bringing of actions thereafter in which such defense must be pleaded. Inasmuch as the present action will determine the entire controversy between the parties, we are of the opinion that the Municipal Court action for rent should be' stayed until the determination of the present action. The plaintiff, however, should give a proper undertaking conditioned, in case he shall not be successful in obtaining a cancellation of the lease, to pay all rent due or to become due thereon. On the giving of such an undertaking, to be approved by a justice of the Supreme Court, the order appealed from is reversed, Avith ten dollars costs and disbursements, and the motion for an injunction staying the prosecution of the Municipal Court actions granted, Avithout costs.

Ingeaham and Laughlin, JJ., concurred; Claeke and Soott, JJ., dissented.

Clarke, J. (dissenting):

I dissent. The allegations of fraud in the malting of the lease, if sustained, would be a complete defense in the action for rent. There is, therefore, no necessity for an action in equity to procure the cancellation of the lease. If a dissatisfied tenant is entitled to enjoin the prosecution of an action for rent an unnecessary and intolerable burden will be imposed upon property holders in this city.

The order appealed from should be affirmed, with ten dollars costs and disbursements, and the motion for an injunction denied, Avith ten dollars costs.

Soott, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, Avithout costs, on the conditions stated in opinion. Settle order on notice.  