
    Giuseppe Rubino and Antonio Buccolo, Respondents, v. Gerardo Mariano, Appellant.
    
      Injunction — to restrain the execution of a warrant in summary proceedings — what allegations seeking a reformation of a lease are insufficient — service of additional affidavits after the service of an order to show cause.
    
    An injunction restraining the execution of a warrant for dispossession in summary proceedings until the determination of an action brought by the tenants against the landlord to reform the instrument under which the tenants held possession, and which simply purported to give them the privilege of occupying the premises for fifty dollars a month and did not define the duration of the term, into a lease until May 1, 1903, will not be granted where, although there is a general allegation of. fraud and deceit upon the part of the landlord, the only fact stated' in the moving affidavit is that the tenants accepted the instrument without reading it upon the supposition that it set forth a different agreement, and where there is no proof of the authority of the person who signed the instrument, as attorney for the landlord, to make on behalf of the laudlord the agreement alleged to have been made.
    
      Semble, that a party making a motion based upon an order to show cause who, without leave of the court, serves additional affidavits on the opposing party before the return day with a notice that such additional affidavits will be presented and be made a part of the moving papers, is not entitled to have suoh . additional affidavits read on the motion.
    Where, [however, the additional affidavits are, without objection, read and considered upon the motion, they must be considered upon appeal.
    Appeal by the defendant, Gerardo Mariano, from an order of the Supreme Court, made at the New York Special Term and ■entered in the office of the clerk of the county of New York on the 20th day of September, 1901, granting an injunction pendente lite restraining the defendant from executing a warrant for the dispossession of the plaintiffs in summary proceedings.
    
      Jay G. Guggenheimer, for the appellant.
    
      Aehille J. Oishei, for the respondents.
   Ingraham, J.:

This is an appeal from an order continuing a temporary injunction whereby the defendant is restrained from executing a dispossess warrant removing the plaintiffs from certain premises in the city of New York until the determination of the action. The ■action seems to be brought for the reformation of an instrument in writing whereby the plaintiffs were allowed to occupy certain premises, No. 258 Elizabeth street, in the city of New York, consisting of part of a store, from month to month, the plaintiffs alleging that the agreement was that the premises were to be leased to the plaintiffs until May 1, 1903. The complaint alleges that the agreement for the lease was with the defendant; that the defendant on the 16tli of March, 1899, delivered to the plaintiffs an instrument in writing, stating to plaintiffs, “ Here is your lease for the store and loft and the use of the ice box for seventy-five dollars per month during the term of my lease, which I hold and which will expire on the 1st of May, 1903; ” that said instrument was in English and was not read ■over to plaintiffs nor translated to them.

The instrument received by plaintiffs is annexed to the complaint. By it the defendant gives to the plaintiffs the privilege to use “ the three-fourths rear parts of the store situated and numbered 258 Elizabeth street * * * as a concert hall.” No time is mentioned in this instrument. By it the plaintiffs simply have a privilege to use certain parts of a store as a concert hall for fifty dollars per month. The motion for an injunction was based upon _ this complaint and upon an affidavit of one of the plaintiffs. In this affidavit it is stated that on the 16th of March, 1899, the deponent, together with the other plaintiffs, entered into an agreement with the defendant whereby the plaintiffs were to have the free use of the store and loft at 258 Elizabeth street in the city of New York for the remaining period of the lease which the defendant had of the premises; and by reason of the defendant’s giving to the plaintiffs a written lease of the premises for the said remaining term the plaintiffs were to pay to the defendant seventy-five dollars instead of sixty dollars, as they had theretofore been paying; that “ at the instigation of the defendant herein he had his bookkeeper write out a memorandum and agreement which was supposed to contain all the terms of the agreement entered into for the lease of the premises, and the plaintiffs relying upon the honesty of the defendant took the said memorandum without having the same read over to them, and thinking that the same was for the remaining period of the defendant’s lease, that is, to May 1st, 1903, did not do anything more about it, and continued to remain in possession of the said store from then up to July 1st, 1901, without any trouble arising between the plaintiffs and defendant.”

It is quite clear that the facts stated in the affidavit do not justify a judgment for the reformation of the agreement. The bookkeeper who wrote out the memorandum and agreement would appear to have been the bookkeeper of the plaintiffs, but there is no allegation here that the defendant understood that the agreement as written out contained any provision other than that contained therein, or that the defendant promised to make any other agreement with the plaintiffs than that which was contained in the writing. There is a general allegation that the defendant practiced fraud and deceit on the plaintiffs, and that by reason of said fraud the plaintiffs have been dispossessed from the said premises. But just what fraud was perpetrated, or how it was perpetrated, does not appear, the only fact stated in the affidavit being that the plaintiffs supposed that they had a different agreement from that delivered to them. Most specific allegations are required to justify the court in granting such an injunction. By subdivision 2 of section 2265 of the Code of Civil Procedure it is provided that an injunction to restrain the execution of a warrant shall not be granted, “ except in a case where an injunction would be granted to stay the execution of the final judgment in such an action (of ejectment) and upon the like terms.” To entitle the plaintiffs to an injunction under the provisions of this section restraining the issue of a warrant, there must be proof of facts which would justify an affirmative judgment in the action under which the plaintiffs would be entitled to the possession of the property at the time the proceedings were commenced, based upon facts that would not be a defense to the dispossess proceedings. Here there is a failure to prove such facts. A lease for the period alleged in the complaint, to be valid, must be signed by the defendant. The paper presented and which the plaintiffs seek to reform into a lease of the premises down to May 1, 1903, is an instrument which purports to be signed by John Mariano, attorney for Gerardo Mariano. There is no allegation in any of these papers that John' Mariano was in fact the agent of the defendant, or that he signed this instrument by his authority.

The allegation of the complaint that the agreement was with the defendant, or that the defendant made any representation to the plaintiffs, is not supported by affidavit; and it would appear that plaintiffs relied upon the agreement made with the alleged agent of the defendant without proof that the agent had any authority to act.

The order to show cause why an injunction should not be granted seems to have been obtained on the 16th of August, 1901, returnable on the 20th of August, 1901, but the motion seems to have been adjourned to August 23rd. On the 22d of August, 1901, the plaintiffs served upon defendant affidavits of fifteen persons, with a notice that such additional affidavits would be presented and made a part of the papers on the motion returnable on the 23d of August, 1901. By these affidavits the deponents purport to have overheard a conversation between one of the plaintiffs and John Mariano in relation to the lease of these premises, and these affidavits are recited in the order as being the affidavits upon which the motion was made. It is quite evident that upon such a motion, and without leave of the court, the plaintiffs were not entitled to have these affidavits read upon a hearing of the motion. As, however, no objection to this practice seems to have befen taken by the defendant, and as the court incorporated the affidavits thus served as affidavits upon which the motion was made, they must be considered. But the facts therein stated are insufficient to overcome the objection to the want of proof of facts which would justify a judgment reforming this instrument by making it a lease of the premises. All that appeared from these affidavits was that at one time a person representing himself as the agent of the defendant had verbally agreed to lease the premises to the plaintiffs until May 1, 1903.

We think, therefore, that the-injunction was erroneously granted, as there was no evidence before the court from which it appeared that the plaintiffs would be entitled to a lease to May 1,1903, or for a reformation of this instrument.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Yan Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.

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