
    (59 App. Div. 140.)
    POTTER v. POTTER.
    (Supreme Court, Appellate Division, Second Department.
    March 8, 1901.)
    1. Ejectment—Injunction—Unlawful Detainer—Landlord and Tenant— Equity.
    Under Code Civ. Proc. § 2265, providing that an injunction to stay summary proceedings to recover land shall not be granted except where an injunction would be granted to stay the proceedings in an action of ejectment brought by the petitioner, the court, in its discretion, may grant such an injunction in an action where plaintiff alleges that she and defendant are partners in, and life tenants of, the property, and prays an accounting, since there may be equities between the parties beyond the mere determination of the question of landlord and tenant.
    2. Same—Undertaking.
    Under Code Civ. Profe. ¡? 620, providing that, where special provision is not otherwise made for the security to be given on an injunction order, the party applying therefor must give an undertaking to secure defendant, with sureties, as the court may direct, an injunction restraining summary proceedings for land should not be granted without such undertaking.
    Appeal from special term, Kings county.
    
      Action by Mary Potter against Israel Potter. From an order granting an injunction pendente lite against all proceedings on the part of defendant in summary proceedings to recover possession of real property, defendant appeals.
    Modified.
    _ Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JERKS, and SEWELL, JJ.
    William T. McCoun, Jr., for appellant.
    Allan M. Stoddart, for respondent.
   JERKS, J.

This is an appeal from an order granting an injunction pendente lite, restraining the defendant from interference with the realty named in the complaint, and particularly from instituting, maintaining, or continuing any summary proceedings to evict or to' dispossess the plaintiff from possession thereof, and enjoining and restraining a certain justice of the peace of Oyster Bay, county of Rassau, from continuing or taking any further action in summary proceedings pending before him, wherein the defendant herein is plaintiff and landlord, and the plaintiff herein is defendant and tenant. Plaintiff complains that under a certain executed agreement she is in possession of the premises as tenant for life with the defendant, and demands judgment that her interest be fixed and determined; that the defendant be restrained from interference with her estate,- and, if necessary, that a receiver be appointed, and that an account be taken and stated between the parties as to the said agreement, upon the ground that the parties were partners as to the possession of the premises; and for such other relief as may be just. Section 2265 of the Code of Civil Procedure provides that such an injunction shall not be granted except in a case where an injunction would be granted to stay the proceedings in an action of ejectment brought by the petitioner, and upon the like terms. While the amendment of section 2244 of the Code of Civil Procedure, made in 1893, permitted the defendant in summary proceedings to set forth a statement of any new matter constituting a legal or equitable defense or counterclaim, and the establishment thereof -as if the claim for rent in such proceedings was the subject of an action, has made many of the decisions rendered prior thereto of no force as precedents, still there are undoubtedly cases where the propriety of the exercise of such power is plain. McAdam, Landl. & Ten. (3d Ed.) 1426, and cases cited. Proceedings in an action of ejectment, which is made the test (section 2265, Code Civ. Proc.), wifi not be enjoined where the question involved can be determined at law, or where the ground relied upon in the injunction would be available in the defense thereof (Chadwick v. Spargur, 1 Civ. Proc. R. 433; High, Inj. § 325). In Siemon v. Schurck, 29 N. Y. 598, 614, the court recognized the propriety of the institution of a suit to restrain an action of ejectment, although it was sufficiently plain that the plaintiff might have defended the ejectment suit under the equitable title claimed by her, oh the ground that she desired and obtained more comprehensive relief than she could obtain in that suit. In Quinn v. Quinn, 46 App. Div. 241, 242, 61 N. Y. Supp. 684, we said that the question to be determined in summary proceedings must always be whether the relation of landlord and tenant exists, and whether the landlord or tenant has the present right of possession. I think that there is •enough shown in the plaintiff’s case to warrant the learned special term, in the exercise of .its discretion, to grant this injunction; and that the order may be affirmed, inasmuch as there may possibly be equities between the respective parties beyond the mere determination of the question of landlord and tenant, and the right of possession under that relationship. Of course, I express no opinion whatever upon the merits of any controversy between the parties. While the order may be upheld on the ground of a fair exercise of discretion, it is, I think, defective, in that no undertaking is required. Section 2265 requires that such order shall be granted upon the like terms that attach to an injunction order in ejectment. I find no express provision in the Code that defines those terms, but I think that section 620 is applicable. Gilman v. Prentice, 11 Civ. Proc. R. 310; Chadwick v. Spargur, supra, note on page 436 et seq. See, too, Hotel Co. v. Brennan, 64 Hun, 607, 613, et seq., 19 N. Y. Supp. 276.

The order of the special term is reversed, with $10 costs and disbursements, unless the plaintiff apply to the special term within 10 •days, upon notice to the defendant, to determine and to fix upon a proper undertaking, and unless the plaintiff, within 10 days after the determination of the special term, comply with any order that may be made by the special term in the premises, in which event the order is affirmed, without costs of this appeal to either party. All concur.  