
    Georgia T. Hollister, Respondent, v. Samuel D. Wohlfeil, Appellant.
    First Department,
    November 5, 1906.
    Landlord and tenant'— when action under section 1638, Code of Civil Procedure, does not lie —evidence — effect of suppressing instrument showing title — summary proceedings — jurisdiction of Municipal Court of New York.
    The owner of lands cannot maintain an action under chapter 14, title 1, article 5. of the Code of Civil Procedure against an alleged assignee of her tenant to determine the plaintiff’s right to possession when the remainder of the defendant’s term is less than ten years, and a temporary injunction in such action restraining the defendant from maintaining summary proceedings against * sub-tenants is unauthorized.
    When it is a question as to whether the defendant holds lands' as assignee of a lease which contained a covenant against assignment, or whether he holds as sub-tenant, and the instrument under which he holds is described in the moving papers by parties Who have seen it as an assignment, and defendant who has it in his power fails to produce the instrument, the plaintiff’s contention as to the nature of the title will be assumed to be true.
    Although sub-tenants defending summary proceedings answer that their lessor’s ' lease has been forfeited, the Municipal Court is not ousted of jurisdiction.
    Appeal by the defendant, Samuel D. Wohlfeil, from an order of the Supreme Court, made at the Hew York Special Term and entered iii the office of the clerk of the county of Hew York on the 27th day of "July, 1906, restraining the prosecution by the deferidánt in the Municipal Court of certain summary proceedings.
    
      Edward Hymes, for the appellant.
    
      James W. Prendergast, for the respondent.
   Scott, J.:

In 1886 the plaintiff acquired two lots of land upon which buildings were erected situated on Avenue A in Hew York city. When she acquired the property it was subject to a lease which expired in 1890. Upon the expiration of that lease she made a new lease of the premises to one Althea Mackey for 'a term of twenty-one years from May 1, 1890. This lease contained a covenant against assignment thereof without consent, of the lessor, and provision that - in case of the breach of such covenant the lessor might re-enter. The complaint alleges that in March, 1906, Althea Mackey, the lessee, without plaintiff’s consent assigned the lease and the unexpired term thereof to the defendant, thereby violating the covenant above referred to, and that plaintiff thereafter made an entry in and upon the demised premises, and that such re-entry for conditions broken operated to bring about an immediate termination of the lease and the term of years granted thereby. The defendant denies that there was any attempt to assign'the lease to him, but alleges that all that he received was a sub-lease for-a term expiring one month earlier than the expiration of the lease to Mackey. There is included in the motion papers certain evidence given in another proceeding by persons who had seen and examined, the instrument executed by Mackey, who describe it as an assignment of the lease, and as the defendant had it within his power to definitely settle the question by producing the instrument or a copy thereof upon the hearing of the motion and did not see fit to do so, we shall assume for the purposes of this appeal that the instrument was an assignment and not merely a sub-lease. There were a number of subtenants upon the property when Mackey assigned the lease to defendant, of whom a considerable majority have undertaken to attorn to plaintiff and have paid rent to her. Against two of these sub-tenants the defendant instituted summary proceedings in the Municipal Court. Of these proceedings the plaintiff appears to have assumed the active defense on the part of the tenants. In each case a. final order was made in favor of defendant as landlord and the execution of the order having been stayed, appeals were taken and are now pending before the Appellate Term. The defendant has instituted some eighteen other proceedings against as many sub-tenants, and the order appealed from restrains, pendente lite, the prosecution of these proceedings, and likewise restrains the defendant generally from attempting to collect rents or from interfering in any way with plaintiff’s peaceable possession of the premises.

The action is avowedly brought under article 5 of title 1 of chapter 14 of the Code of Civil Procedure (§§ 1638 et seq.), which authorizes, in certain cases, an action by a party in possession to determine an adverse claim to real property. Such an action may be brought against a defendant who makes or might make a claim to an “ estate in that property in fee, or for life, or for a term of years not less them ten, in possession, reversion or remainder, or to any interest in that property, including any claim in the nature of an easement therein, whether appurtenant to any other estate or lands, or not, and also including any lien or incumbrance upon said property, of the amount of value of not less than two hundred-and fifty dollars.” The utmost claim that defendant can assert, assuming that he is assignee of the lease, is the unexpired term of Althea Mackey, which runs only until May 1, 1911, He cannot, therefore, be said to claim an estate for a term of years not less than ten. His claim, therefore, whether as sub-tenant- or as assignee, is not one of those concerning which an action for determination may be brought under the sections of the-Code above cited. It appears, therefore, that this action cannot be successfully maintained. If the plaintiff does not set forth a cause of action entitling her to a judgment, she is not entitled to an injunction pendente lite. In order to justify such an injunction it must appear presumptively that the plaintiff is entitled to a judgment, and that does not so appear in the present case. If the tenants against whom the defendant is proceeding have just and valid defenses, no reason is disclosed why they may not successfully assert them in the summary proceedings. If they have no such defenses, the prosecution of the proceedings should not be enjoined. The plaintiff is in error in assuming that, because the answers of the tenants may seek to raise the question as to whether the lease has been forfeited and terminated, the Municipal Court will thereby be ousted, of jurisdiction. (Quinn v. Quinn, 46 App. Div. 241.) It follows that the order appealed from must be reversed, with ten - dollars costs and disbursements, and the temporary injunction vacated, and the motion to continue it pendente lite denied, with ten dollars costs". •

O’Brien, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, term porary injunction vacated, and' motion to continue injunction pendente lite denied, with ten dollars costs.  