#### Estates Development Company and Henry F. Rees, Respondents, *v.*John F. Gallagher and Others, Appellants.

First Department,

December 5, 1913.

Summary proceedings — when plaintiff in action to restrain interference with premises, not entitled to temporary injunction enjoining dispossession of its tenant.

Where, in a suit to restrain the defendant from taking possession of or interfering with certain premises claimed by the plaintiff, the latter did not attempt to establish any interest in the property except by an unsupported allegation that it owned the same, and (lid not state any facts showing how it caused the removal of a tenant under a lease from the defendant, and did not deny that defendant had been in undisputed possession of the property for thirty years, it is not entitled to a temporary injunction restraining the defendant from dispossessing its lessee.

Scott, J., dissented, with opinion.

Appeal by the defendants, John F. Gallagher and others, 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 12th day of July, 1913, granting an injunction *pendente lite.*

*Julius D. Tobias, Attorney [Isaac Josephson*and *Ernest Krasman*of counsel], for the appellants.

*Harold Swain,*for the respondents.

Ingraham, P. J.:

The complaint alleges that the plaintiff corporation is the owner of certain premises in the borough, now county, of Bronx; that in October, 1912, one Judge was in possession of the premises, claiming title under a lease from the defendants Gallagher, who claimed some interest in the premises; that in October, 1912, the plaintiff corporation caused said Judge to be removed from said premises and it remained in possession thereof until April, 1913, when it leased said premises to one Eees, and Eees took possession of said premises; thatonMay 20,1913, said Gallaghers began special proceedings in the Municipal Court of the City of New York to dispossess the said Judge from said premises, and that on June 3, 1913, an order was made and entered directing that a warrant issue for the purpose of removing said *416Judge from said premises; that in pursuance of said warrant the defendants Gallagher have threatened to remove Eees from said premises; that said defendants Gallagher have no right, title or interest whatsoever in or to the said premises, and demanding judgment, enjoining and restraining the defendants and each of them from entering upon the said premises and from removing therefrom the plaintiff Eees or any person employed by him, or in any way taking possession of or interfering with the said premises, and enjoining and restraining certain other defendants from delivering possession of the said premises to the said defendants Gallagher pending the final determination of this action. Upon this complaint an application was made for a temporary injunction restraining the marshal to whom the dispossess warrant had been delivered from removing the plaintiff Eees from the premises or in any way taking possession of or interfering with said premises or delivering possession of said premises to defendants Gallagher, and from the order continuing such injunction the defendants appeal.

The defendants claim title to the premises under a deed from the supervisor and justices of the peace of the town of Westchester to the predecessors in title of defendants Gallagher dated March 21, 1883, and allege that they have been in undisputed possession of the premises since that time. On February 21, 1910, the defendants leased the said premises to Judge for the term of five years from the 1st of February, 1910, at an annual rental of $1,000, and it appears that Judge entered into possession of these premises under this lease, and continued to occupy them for some time. The plaintiff corporation alleges that in some way not disclosed they had ejected Judge from the premises and leased them to Eees. It appeared as a fact that Judge was on and about the premises until the time the warrant jvas issued to the defendants; that a liquor business was then conducted in his name, and that when dispossess proceedings were instituted by the defendants against Judge, the latter appeared as tenant, and interposed an answer in the proceedings, but a final order was granted and a warrant issued. Ueither in the complaint nor in the affidavit does the plaintiff corporation attempt to establish any interest in the *417property save by the bare, unsupported allegation that it owns the property; nor are any facts stated to show how said Judge was dispossessed of the possession of the property, the plaintiff corporation resting on the naked allegation that Judge had in some undisclosed way been dispossessed; nor is there any denial of the fact that defendants have been in undisputed possession of the property since 1883.

Subdivision 2 of section 2265 of the Code of Civil Procedure provides that an injunction shall not be granted “after the final order, except in a case where an injunction would be granted to stay the execution of the final judgment in such an action [ejectment], and upon the like terms.” In this case nothing appears to justify the court in restraining the execution of a judgment in ejectment. Whether or not a temporary injunction shall issue is always in the discretion of the court. The court is not justified in granting an injunction to protect the possession of real property unless the plaintiff who comes into court establishes some interest or title to the property. It is said that neither the plaintiff corporation nor Eees was a party to that proceeding. If they are actually in good faith in possession of the property they can resist the execution of process by the marshal and the courts can then afford them the redress to which they may be entitled. Plaintiffs established no title or interest in the property as against the persons who have been in undisputed possession for thirty years. Judge took title under a lease from the defendants. He, therefore, could not dispute the defendants’ title. There is no fact showing how Judge was dispossessed or the facts upon which the plaintiff corporation bases its claim to possession, and, in the absence of the proof of some facts showing either title in the plaintiff corporation or actual possession in the plaintiff corporation or its lessee, Eees, certainly an injunction was not justified.

It follows, therefore, that the order must be reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs.

Clarke, Dowling and Hotchkiss, JJ., concurred; Scott, J., dissented.

*418Scott, J. (dissenting):

I dissent. It seems to me that this is essentially a case in which the *status quo*should be preserved by means of a temporary injunction until the trial. The property is of such a nature that its use during the winter season can be of little value, and there should be no difficulty in trying the cause before spring.

The injunction only runs to protect Rees, plaintiff corporation’s tenant, from physical expulsion under process issued in a proceeding to which he was neither a party nor privy to a party.

Summary proceedings are not a proper method of testing title to real estate. The plaintiff corporation claims to be in possession through its tenant, not in subordination to, but in hostility to defendants’ title. If it is actually in possession under a claim of title and there is no evidence to the contrary, but merely suspicion, its right to possession could not have been tried in the summary proceedings even if it or its tenants had been made parties to the proceeding, as, however, they were not. If plaintiffs really have title and have obtained possession, no matter how, they cannot legally be ousted in summary proceedings.

I am, therefore, of opinion that the order should be affirmed.

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