
    Jacob J. Goldman and Michael Goldman, Respondents, v. Henry Corn, Appellant, Impleaded with Charles Deitsch and Edward J. Deitsch, Defendants.
    First Department,
    March 9, 1906.
    Injunction pendente lite—when assignee of lease entitled to injunction to-restrain landlord from interfering with his possession —complaint insufficient which. fails to allege facts showing remedy at law is inadequate—affidavits insufficient. ’
    The assignee of a lease not containing restrictions.against assignment may have an injunction pendente lite under section 603 of the Code of Civil Procedure to • restrain the landlord from excluding such assignee from the premises if the complaint sets out facts showing that the remedy at law is not adequate.
    But, as ordinarily a tenant’s remedy at law is adequate, a complaint praying for such injunction is not sufficient to warrant the granting of the same when it does not set out facts showing' the inadequacy of the remedy at law. A mere allegation that-plaintiff will .sustain irreparable damage and has po adequate remedy at law iá insufficient.
    Accompanying affidavits are not" sufficient to show said facts, as under section 603 of the Code of Civil Procedure the right to the injunction in such action must appear upon the face of the complaint..
    Appeal by the defendant, Henry Corn, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York 'on the 15th day of December, 1905, granting an injunction pendente lite.
    
    
      George Hahn, for the appellant.
    
      Brussel & Beebe [B. F. Einstein of counsel], for the respondents.
   Clarke, J.:

This is an appeal by the defendant Corn from an order enjoining him from in any manner interfering with or preventing the.plaintiffs from taking possession of and occupying the tenth loft or eleventh floor of the premises 110 and 112 Fifth avenue in the city of New York. The complaint alleges that-on or about O.ctober 14, 1903, the defendants Deitsch and the defendant Corn entered into a lease whereby Corn leased, the tenth loft of the building 110 and 112 Fifth avenue to the Deitschs for five years, commencing February 1, 1904; that the lease provided for a renewal for a further period of five years, at the option of defendants Deitsch; that said defendants entered into possession and duly performed all the covenants on their part to be performed; that on the 31st of August, 1905, the plaintiffs made an agreement in writing with the defendants Deitsch, whereby the defendants Deitsch leased to the plaintiffs the demised premises for the term of eight years, commencing February 1, 1906 ; that on the 29th of November, 1905, the plaintiffs entered into a further agreement with the 'defendants Deitsch, whereby said defendants gave to the plaintiffs the right to immediately enter into possession of and to occupy said demised premises ; that the defendant Corn has refused, and still refuses, to permit the plaintiffs to enter into possession of and to occupy the said demised premises, and has wrongfully excluded, and continues to unlawfully exclude, the plaintiffs from the same; that by reason of the matters aforesaid the plaintiffs will sustain irreparable loss and damage; that these plaintiffs have no adequate or sufficient remedy at law for the protection of their rights in the premises.

This complaint is framed in equity as a case where the right to an injunction depends upon the nature of the action, and if the facts set up would entitle the plaintiffs to a judgment for such relief, then the issuance of an injunction pendente lité is authorized by section 603 of the Code of Civil Procedure.

The basis of plaintiffs’ claim is that Corn has prevented them from taking possession of the demised. premises under an agreement made by plaintiffs, not with. Corn, but with the Deitschs. If the Deitschs are unable to give them possession of the premises, undoubtedly plaintiffs would have án action against the Deitschs for damages for breach of contract, and the Deitschs would have. an action for damages against Corn for breach of the lease with them, inasmuch as there is no restriction against their subleasing. But I do not understand that ordinarily an action in equity lies to - enforce the right of possession under a lease. The damages are^. clearly ascertainable and may be enforced in an action at law. The plaintiffs seem to .have been of tins, opinion, for they have alleged “ that by reason of the matters aforesaid the plaintiffs will sustain irreparable loss and damage,” and they have set up in their affidavits facts and circumstances which, if alleged in the complaint, might - have been sufficient to entitle them to the reinedy therein demanded, and só warrant the order here appealed from. But the complaint contains no s.uch matter.

In Heine v. Rohner (29 App. Div. 242) Presiding Justice Van. Brunt said : “ It is to bp observed that the question of the right to an injunction of this character depends-upon the allegations of the complaint, and that unless it appears from the complaint that the plaintiff is entitled to the judgment of injunction, it cannot issue. (Code Civ. Proc. § 603.) It may all be yery true that evidence may be 'offered in the shape of affidavits to Support the allegations of the complaint, but where the complaint itself - shows no cause of action or right to relief, such right cannot "be established by affidavit.”

In McHenry v. Jewett (90 N. Y. 58) Chief Judge Andrews, said :■ “ The mere allegation- of serious, or irreparable injury apprehended or threatened, not supported by. facts or circumstances tending to justify it,. is clearly insufficient. Neither injury to the plain tiff’s.property, inadequacy of the legal remedy, or any pressing ' or serious emergency, or danger of loss, or other special ground of jurisdiction is shown by the' complaint. The complaint, therefore, does not show that the plaintiff is entitled to final relief by injunction. * * * .It is doubtless sufficient that a probable, or caso be made to justify the- granting of an injuncjinn pendente Ute, but where, as in this case,' it clearly appears that the complaint shows no cause of action, then a preliminary injunction is unauthorized and the granting of it is error of law which may be reviewed by this court on appeal.”

In Brass v. Rathbone (153 N. Y. 435) it was said : “ The only allegation in their complaint, however, is that the discontinuance of the supply of water to their premises would work a great hardship to the tenant and.produce great and irreparable injury to the plaintiffs. But no facts are stated in the complaint justifying that conclusion. The mere allegation of great or irreparable injury apprehended or threatened which is not supported by facts or circumstances tending to justify it is clearly insufficient. Therefore, the complaint does not show that the plaintiffs were entitled to relief By injunction.”

It follows that the complaint in this case not setting up facts sufficient to warrant the final judgment of injunction, it was error to grant the in j unction pendente lite.

Order reversed, with ten dollars costs and disbursements, and injunction vacated, with ten dollars costs. ■

Ingraham, J., concurred.

O’Brien, P. J.

(concurring):

I concur in the conclusion reached by Mr. Justice Clarke, and for the following reasons:

He states that plaintiff has set up in his affidavits facts and circumstances which, if alleged in the complaint, might have been sufficient to entitle him to the remedy therein demanded, and so warrant the order here appealed from. But the complaint contains no such matter.” I agree that this latter statement is correct, but I am of opinion that if the facts and circumstances stated in the affidavits' had been included in the complaint the plaintiffs would have been entitled to an injunction pendente lite. The law is well settled that the landlord has no right upon his tenant’s premises during the term, without the tenant’s consent, unless such right of entry is reserved in the letting. Every unlawful entry upon the premises of another is a trespass, and, whether the owner suffer much or little, he is entitled to recover some damages.” (Shannon v. Burr, 1 Hilt. 40.)

The Deitschs under their original lease had been in possession from October, 1903, until August 31, 1905, and having the right to assign the lease to -the plaintiffs, the landlord, Corn, had no more legal right than a stranger to interfere with plaintiffs going into possession. For such an unlawful interference with the plaintiffs’ rights they would ordinarily have an adequate remedy at law for damages. And that a tenant also has the right to enjoin a trespass is also abundantly supported by authority. (Doyle v. Lord, 64 N. Y. 432.) In the latter case it must' appear■ that mere damages are not an adequate remedy.

The.learned judge at Special Term, upon the question whether the plaintiffs have an adequate remedy at law, sayS: It sufficiently appears- that the busy season of plaintiffs is at hand • that they are in danger of losing trade if they are not permitted to take possession, and in my judgment, sufficient of a prima facie case "is presented showing that they would have no adequate' remedy at law.” The facts, however, upon which this is made evident are not stated in the complaint, but appear in affidavits which were used upon the motion. I agree, therefore, with Mr. Justice Clabke, that as the right to injunctive relief in this instance depends upon the nature of the ‘action, and is thus controlled by section 603 of the Code of Civil Procedure, the three cases which he cites (Heine v. Rohner, 29 App. Div. 242; McHenry v. Jewett, 90 N. Y. 58; Brass v. Rathbone, 153 id. 435) are authorities for the proposition that the facts must be alleged in the complaint showing that the plaintiffs are entitled to injunctive relief, and that such right cannot be established by affidavits.

I think, therefore, that the order must be reversed, but without prejudice to a renewal of the application should the plaintiffs be successful, in obtaining leave to serve an amended complaint with suitable allegations which support their right to injunctive relief. .

Laughlin and Houghton, JJ., concurred.

Order reversed, with’ ten dollars costs and disbursements, and motion.denied, with ten dollars costs, without prejudice to a renewal as stated in opinion. Order filed.  