
    Lakes Island Realty Company, Inc., Plaintiff, v. William J. McDermott, as Superintendent of Buildings, etc., and Metropolitan By-Products Company, Inc., Defendants.
    (Supreme Court, Kings Special Term,
    June, 1916.)
    Title — question of, when not determined — action for injunction restraining superintendent of buildings from issuing building permit —‘deeds — Real Property Law, § 260, as amended.
    Where an application for a building permit, and the plans died, comply with all provisions of law the superintendent of buildings of the borough of Richmond may be compelled to grant the permit; the question of title to or ownership of the property cannot he determined by him.
    Where, in an action to enjoin the superintendent of buildings of the borough of Richmond from issuing a building permit to one in possession of the lands sought to be built upon and claiming title thereto under recorded deeds, plaintiff who also claims title to the property neither shows that it will be damaged if its motion for an injunction pendente lite is denied, nor that its damage if any there should be cannot be ascertained or compensated for in money, the motion will be denied.
    An injunction pendente lite should not be granted where the right thereto is doubtful, especially if the damage that would be caused thereby to defendant would be far greater than that suffered by plaintiff if the relief was denied.
    Where it appears that plaintiff’s grantors were not in possession of the property when they made a conveyance thereof, and that bolh at that time and for some time previously the applicant for the building permit and its predecessors in title were in actual physical possession of the property claiming to own it adversely to plaintiff and its grantors, plaintiff’s deed was void under section 260 of the Real Property Law, as amended in 1910, and even assuming that plaintiff’s grantors had a good title and that the applicant for the building permit and its grantors had none the deed to plaintiff would still be void.
    Action for an injunction.
    Thomas Garrett, Jr., for plaintiff.
    Lamar Hardy, corporation counsel (R. Percy Chittenden, of counsel), for defendant McDermott.
    Lewis & Kelsey (Frederick T. Kelsey, of counsel), for defendant By-Products Company.
   Cropsey, J.

The action is to enjoin the superintendent of buildings of Richmond borough from issuing building permits-to his co-defendant, the By-Products Company. The sole basis of the action is the claim that the plaintiff owns the property sought to be built upon by the By-Products Company, and that that company does not own it. The question how before the court is upon a motion for an injunction pending the trial of the action, granting the very relief sought by the judgment demanded in the complaint.

The plaintiff admittedly is not in possession of the property. That admittedly is in the possession of the defendant By-Products Company, and that company also claims title to the property under recorded deeds. This application and action in no way affect the actual possession of the property. If the plaintiff should be successful and obtain a judgment, it would not put it in possession of the premises, the title to which is disputed. All that plaintiff could obtain in this action is an injunction preventing the By-Products Company from building on the property, but that company would be left as it now is in possession, and plaintiff might never seek to obtain possession. Whatever may ultimately be held as to the title to the island in question, it is not disputed in these papers that the By-Products Company has at least a color of title acquired in good faith, and is in possession, claiming thereunder. The plaintiff claims its title is superior to that of. the defendant By-Products Company, but on the matters submitted to the court it would not be possible so to adjudge. Nor is there any finding that defendant’s title is paramount, and as defendant is in possession it would seem to follow that it should not be prevented from exercising acts of ownership over the property. That in effect is the apparent purpose of this application. ■

It is sought to compel the superintendent of buildings to refuse building permits for which the By-Products Company has applied. One of the plaintiff ’s- grantors had previously obtained a permit to build on the property in question, but no work had been done under that.

The Greater New York charter (§§ 406, 411) prescribes the duties and powers of the superintendent of buildings. He must, subject to the provisions of law and ordinance, pass upon the mode and manner of construction and of materials to be used in buildings. He cannot arbitrarily refuse a permit nor should he refuse it when the application and plans filed comply with all provisions of law. City of New York v. Stewart Realty Co., 109 App. Div. 702; People ex rel. Swain v. Reville, 50 Misc. Rep. 474; City of Buffalo v. Kellner, 90 id. 407, 416.

The building code requires all applications to state the name of the owner. The application in question states the By-Products Company to he the owner. The superintendent cannot refuse a permit merely because some one claims that company is not the rightful owner of the property. The question of title or ownership cannot be determined by the superintendent. He must be bound by the statement in the application. This in effect is conceded in plaintiff’s memorandum, and it is the law. Matter of Hurwits v. Moore, 132 App. Div. 29. The cases already cited show that the superintendent can be compelled to grant permits where the applications and plans conform to law. So also in a taxpayer’s action he may be restrained from issuing a permit, when the plans filed do not comply with the requirements (Altschul v. Ludwig, 216 N. Y. 459), but the title to property cannot be tried and determined in such a proceeding. Matter of Hurwits v. Moore, supra. Nor can an injunction pendente lite be granted to prevent a person in possession of property under a claim of title from exercising acts of ownership over it. A court of equity will not by injunction pending a trial put a party into possession of property which is held adversely to him under a color of title. Troy & B. R. R. Co. v. Boston, H. T. & W. Ry. Co., 86 N. Y. 107, 123; Black v. Jackson, 177 U. S. 349, 361; Bachman v. Harrington, 184 N. Y. 458. To seriously interfere with and restrict a person’s use of property, falls under the same rule. Such a restriction will not be imposed by preliminary injunction (Bullard v. Bearss, 3 N. Y. Supp. 683; affd., 51 Hun, 643; Storm v. Mann, 4 Johns. Ch. 21); and as the case last cited held that such relief could not be had to prevent waste, it surely cannot be granted here to prevent improvement. The defendant By-Products Company intends to expend $300,000 on the buildings for which permits are sought.

On the argument, the court suggested to plaintiff’s counsel that the relief sought, involving as it does a question of title, and depriving, as it would, the defendant By-Products Company of the use of the property it claims to own and of which it has possession, could not be granted by an injunction pendente lite. Counsel were invited to submit authorities on that point. None has been submitted by plaintiff. The only eases brought .to the court’s attention are those in which after the trial of an action a judgment was made prohibiting certain things, but even these cases were brought by the parties in possession of the, property and not by some one who was out of possession.

The plaintiff does not show that it will be damaged if its application is denied. That statement is contained in the moving papers, but it is not borne out. If the defendant improves the land, and it is ultimately determined that the plaintiff is the owner of it, it will become the owner also of the improvements. Copley v. O’Neill, 1 Lans. 214; Thayer v. Wright, 4 Den. 180. Nor does plaintiff show that its damage, if there shall be any, cannot be ascertained and compensated for in money. This is another essential to the relief sought. Ringler & Co. v. Mohl, 115 App. Div. 549; Robinson v. Guaranty Trust Co., 51 id. 134.

No injunction pending a trial should be issued, where the right to it is doubtful, and especially if the "damages that would be caused thereby to the defendant would be far greater than those suffered by the plaintiff if the relief was denied. Brower v. Williams, 44 App. Div. 337; 340, and cases cited. Nor will such an injunction be granted where great public or private loss or mischief will be produced, merely to protect a technical or unsubstantial right. Wormser v. Brown, 149 N. Y. 163, 173, and cases cited.

Injunctions pendente lite “ which in effect determine the litigation, and give the same relief which it is expected to obtain by the judgment, should be granted with great caution and only when necessity requires.” Bronk v. Riley, 50 Hun, 489, 492. See, also, Maloney v. Katsenstein, 135 App. Div. 224, 226.

In addition to all that has been said, there is a further reason why the plaintiff cannot succeed. This application is based solely upon its claim of ownership to the island in qiiestion. Its deed was máde on June 12, 1916. At that time and for some time previously the By-Products Company and its predecessors in title were in actual physical possession of the property, claiming to own it adversely to the plaintiff and its grantors. The plaintiff’s grantors were not in possession when they made the deed. The deed to the plaintiff is consequently void. Real Property Law, ^ 260, as amd. by Laws of 1910, chap. 628; Church v. Schoonmaker, 115 N. Y. 570, 573; Pearce v. Moore, 114 id. 256. And even if the fact were that plaintiff’s grantors did have a good title and the defendant By-Products Company and its grantors had none, the plaintiff’s deed would still be void. Collins v. Buffalo L. & R. R. Co., 145 App. Div. 148, 152, and cases cited.

Motion for injunction pending the trial is denied,  