
    CAMPBELL v. BABCOCK.
    
      Supreme Court, First District, Chambers ;
    
      November, 1890.
    x. Injunction against summary proceeding^ It is only in an extreme and clear case that the court will by injunction restrain summary proceedings instituted by a landlord to recover possession of premises for non-payment of rent.
    2. Vendor and purchaser; contract with lessee ; merger.] Where the owner of premises made a contract with the lessee during his term that he should have the right to purchase the premises at any time within five years, upon the payment of a specified sum, —held, that there was no merger of the lesser estate of the lessee in the greater under his contract of purchase, as such was not the intention of the parties; that the contract did not give the tenant the right to remain in possession during his term without payment of rent, or affect the landlord’s right to dispossess nim for non-payment thereof.
    3, Summary proceedings against lessee holding contract of purchased Where a lessee, holding a contract with the owner giving him the option to purchase the leased premises for a specified sum, failed to pay his rent provided for in the lease, and summary proceedings were instituted against him, and. a warrant to dispossess him was issued thereon,—held, that a court of equity would not exercise any supervisory power over the judgment of the justice, nor review or supersede its execution, and would not relieve thd lessee, or the assignee of his contract of purchase, from the consequences of his mistake in failing to tender the rent in arrears as well as the purchase price, before the issue of the warrant, by allowing him to pay the rent in arrears, and stay the execution of the warrant.
    Motion to continue injunction.
    Action by Thomas C. Campbell against John J. Babcock and others. The complaint set up an agreement made April 5, 1886, between the former owner of the premises and one Elkins, then the lessee of certain premises in the city of New York for the term of five years from March 13, 1886, at a yearly rent of $500, by which in consideration of his making certain repairs to the premises, and keeping them in tenantable condition during the term of his lease, the owner bound herself, her heirs and assigns, to sell the premises in question to Elkins for $8,000, upon payment to her, her heirs and assigns, of said sum at any time within five years from May, 1886. The complaint alleged the assignment of the contract to plaintiff, October 28, 1890, that he had tendered the $8,000 and demanded a deed of the premises, which the defendants, the present owners, refused to give, and that they began summary proceedings to dispossess the plaintiff and others from the possession of the premises in question; that plaintiff appeared in such proceedings and filed an answer, setting up the contract above referred to, but that the justice disregarded the answer and issued the warrant to dispossess the plaintiff; and the plaintiff demanded that the defendants be restrained from obtaining possession of the said premises, and the defendant Fallon, the justice of the court issuing the warrant, be restrained from issuing the. same against the plaintiff, or his tenant, the said Elkins, and that defendants be required to execute and deliver a deed of the premises to the plaintiff.
    Upon this complaint and an affidavit, a temporary injunction was issued in accordance with the prayer of the complaint, which the plaintiff now moves to continue pendente lite.
    
    
      J. D. Hallen (Campbell & Murphy, attorneys), for the plaintiff and the motion.
    
      William King Hall, for the defendants, opposed.
   O’Brien, J.

The law is settled that it is only in an extreme and clear case that the Court will by injunction restrain summary proceedings instituted by a landlord to recover possession of premises for non-payment of rent.

It is here shown that a lease was made to Elkins on March 13, 1886, for the term of five "years at a yearly rental of $500. It is also made to appear that on April 5, 1886, an agreement was executed, pursuant to which the tenant Elkins obtained the right to purchase the premises at any time within five years, upon the payment of $8,000. It is evident that there was no intention by the execution of this latter agreement, under which Elkins had the right to purchase, to allow him to remain in possession of the premises for the term of five years, without paying rent therefor. In other words, it was not the intention of the parties to merge the lease into the alleged agreement of purchase, but the former was to continue in full force and effect until such time' as Elkins should avail himself of his option of tendering the $8,000 and paying whatever was due for rent and receive a deed of the premises. It is conceded and has been adjudicated upon by the justice that at the time of the summary proceedings there was due for rent the sum of $1,025. Then and for the first time the assignee of Elkins’s contract of purchase claims to have tendered the $8,000, "and to have demanded the deed for the premises. It is doubtful if even the tender, considering the circumstances under which it was made, was a good tender; but it is unnecessary to determine this question in view of the fact that it is conceded that no tender in addition was made of the rent then due. If, at the time the summary proceedings were instituted, a tender of the rent due, together with the $8,000 had been made, a case would have been presented in the event of the justice refusing to consider these facts, for the issuance of an injunction.

I do not see, however, upon the facts, how the justice could have reached any other conclusion than the one arrived at by him whether we regard the tender of the $8,000 as having been made or not. For there was then due by the tenant, for rent of the premises, the sum of $1,025, which was neither paid nor offered to be paid, and which the contract of purchase did not excuse the tenant from paying. The tenant Elkins, prior to the assignment of his contract, in October, 1890, does not claim that he ever tendered the $8,000 and demanded á deed of the premises. Fie was, therefore, in possession of the same under the terms of his lease, and, having failed to pay his rent thereunder, and there being no claim that there had been any waiver under the alleged agreement on the part of the landlord either of the payment of the rent or of his right to invoke his remedies under the statute in case of a failure to pay the rent when due, the landlord was justified in instituting the proceedings and the justice in- granting the warrant. In other words, no attempt to avail of the option to purchase having been made prior to October, 1890, the right to possession was dependent on the payment of rent.

This case, in principle, seems to me to come within the decision of Bostwick v. Frankfield (74 N. Y., 207). It was therein held that the rule as to the merger of a less estate with a greater is not inflexible, but in equity depends upon the express or implied intention of the person in whom the estate united. So, also, the equitable doctrine which protects one who has contracted for the purchase of land by treating him as the owner, and the vendor as the owner of the purchase money, is not invariable, and cannot be applied where the intention of the parties^ is clearly adverse to such a presumption. The language of the judge, in the beginning of his opinion, is apt, as bearing upon the facts here presented, wherein he says: “ If the lease executed . . . was valid and operative at the time when the summary proceedings were instituted by the defendant, and possession obtained under the same, the plaintiff cannot maintain this action.”

The proceedings before the justice involved the determination of the time and letting of the premises, and as to the rent being in arrears and the effect of the alleged agreement to purchase, and such were within his jurisdiction to decide, and this court has no supervisory power over its judgment, to review or supersede its execution in a suit of this character. If aggrieved, the remedy is by appeal.

The mistake or error into which the plaintiff here fell was in assuming that by a tender of $8,000 he was entitled to get rid of the payment of the rent due, and this court has no right to relieve the defendant from the consequences of this mistake by enjoining the issuance of the warrant, upon defendant now offering to pay the rent which he should have paid before the warrant was issued.

The motion to continue the injunction must therefore be denied, with costs.  