
    Abraham Schneider, Sole Surviving Partner of the Firm of M. & A. Schneider, Respondent, v. Clifford L. Miller and American Mineral Wax Company, Appellants.
    First Department,
    June 4, 1909.
    Injunction pendente lite.
    A plaintiff suing to rescind an agreement to assign a mining lease is not entitled . to an injunction pendente lite restraining the defendant from working the ' mine, where it appears that the lease has actually been assigned, that the defendants are working the mine, for which purpose one of them has con-. tributed a large sum of money, and that the defendants have ample means with which to respond to any judgment which may be obtained.
    In any event the plaintiff is not entitled to a mandatory injunction restraining the defendants from retaining possession of the miné, for such inj unction is rarely, if ever, granted pendente lite.
    
    Appeal by the defendants, Clifford L. Miller and another, from that part of an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 24th day- of February, 1909, which grants the plaintiff’s motion for an injunction pendente lite.
    
    
      Donald McLean, for the appellants.
    
      Henry Brill, for the respondent.
   Scott, J.:

Appeal by defendants from an order granting an injunction pendente lite. This is an action wherein the plaintiff seeks to rescind an agreement made by himself, and his deceased brother and former partner, with the defendant Miller, whereby plaintiff and his brother agreed to assign to the defendant corporation a lease of certain mineral lands in Oklahoma, upon condition that they should have a certain proportion of the stock of said company, and that Miller would advance certain money to the company in order that the minerals might be mined and the value of the property realized. When the case was before us on a former occasion on an appeal from an interlocutory judgment sustaining a demurrer to the amended complaint, we had before us only the said complaint from which it appeared. that Miller had totally refused to contribute the money he had agreed to contribute, in consequence of which the very purpose of the agreement sought to be rescinded, to wit, that the mines should be worked, seemed destined to fail. We considered that the complaint stated a cause of action. (129 App. Div. 197.) We have now before us not only the amended complaint but the answer, in which many of plaintiff’s equities are denied, and also very voluminous affidavits. It now appears, as it did not appear before, that the assignment of the lease to the defendant corporation has been consummated, and that the company, or Miller, or both, are now actually working the mines, to which purpose Miller has contributed a considerable sum of money. It also appears without contradiction that Miller is a person of amide means and quite capable of responding for any damages plaintiff may be able to prove againByt him. So much of the order appealed from as restrains defendants from retaining possession of any part .of the premises described in the lease ” could not be sustained in any event amounting as it does to a mandate to the defendants to surrender the possession which it appears they have acquired, for a mandatory injunction pendente Vite will very rarely, if ever, be granted. We also think, as the case is now presented, that the defendants should not be restrained from working the mining property during the pendency of the action or until the rights of the parties can be determined after a trial of the issues.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion for an injunction pendente lite denied, with ten dollars costs.

Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  