#### Azel Graham, plaintiff and appellant, *vs.*Frederick P. James *et al.*defendants and respondents.

1. By the terms of a lease the tenant was entitled to a renewal, upon giving notice of his intention to take the same; and provision Was made for the appointment of arbitrators—one by each party—to determine the amount of rent to be paid, and that if .they should fail to agree, then the amount should be fixed by the two arbitrators together with an umpire to be chosen by them. The notice having been given by the tenant, including the name, &c. of his arbitrator, the landlord appointed one on his part. The arbitrators failed to agree as to the amount of the rent, and thereupon appointed an umpire. Before any determination was made, the landlord withdrew and revoked the appointment of his arbitrator, who thenceforth refused to act with the others, and the umpire, alone, fixed and determined the amount of the rent. *Meld*that the decision of the umpire alone, without the concurrence of either of the arbitrators, did not legally deteimine the amount of the rent which the tenant should pay.

2. *Meld, also,*that the act of the landlord, in withdrawing his arbitrator must be considered as having prevented the meeting of the three, and the probable agreement of a majority of them in an award; and hence that, although the amount of the rent had not been determined by the arbitrators, the tenant could not, without a violation of the principles of equity, be deprived of his right to a renewed lease by this act of his landlord; but was entitled to the lease for such amount of rent as should be found just and proper, upon the trial.

3. Accordingly *held*that it was erroneous, in an action brought by the tenant against his landlord, to compel the execution of a renewed lease, to deny a motion for an *injunction-pendente lite,*restraining the landlord from removing the tenant by a summary proceeding,

(Before Robertson, Ch. J., and Barbour and Garvin, JJ.)

Heard October —, 1868;

decided December 31, 1868.

*469This action was brought to compel the defendant Frederick P. James to execute a lease of certain premises to the plaintiff.

*John Townshend,*for the appellant, plaintiff.

I. By the terms of the original lease the right of the appellant to a renewed lease was dependent upon one condition only, namely, giving notice of his intention to take such renewed lease. The appellant duly complied with that condition, and his right to a renewed lease thereupon became perfect and complete.

II. The appellant has not forfeited that right in any way. The original lease provides for fixing the rent to be paid under the renewal, and that “if, by any neglect o.r default of the tenant or the arbitrator appointed by him, the amount of rent for said renewed term shall not be fixed • on or before the tenth of February, 1868, then the tenant shall forfeit his right to said renewal.” This did not make time so much the essence of the contract as to render a failure to fix the rent within the time prescribed, a forfeiture of the then existing right; but supposing it did, there is no pretense for saying that it was “ by any neglect or default of the tenant or the arbitrator appointed by him ” that the amount of rent was not fixed. The tenant having signified his intention to take a renewed lease, and arbitrators having been appointed by both landlord and tenant, it became as much the duty of the landlord and his arbitrator, as of the tenant and his arbitrator, to take steps to carry out the arbitration; but every thing that was done was done by the tenant’s arbitrator; the landlord • took no step to forward the matter; on the contrary, so soon as his arbitrator commenced to act he revoked the authority of the arbitrator.

III. It cannot be contended that the landlord could, by his act of revoking the appointment of his arbitrator, take *470away the- tenant’s right to a renewal. "What, under such circumstances, was the tenant to do ? Supposing he had , accepted the offer of the landlord to appoint another arbitrator, what guarantee had the tenant that the landlord would not again withdraw his 'arbitrator? Could the tenant do otherwise than he did—to come to this court to have the amount of rent fixed ?

IV. It is alleged, and not denied, that the landlord contemplated taking summary proceedings to dispossess the plaintiff; should he be permitted to do this, the right of the tenant to a renewal, which is not denied, being an equitable right only, would furnish no defense thereto, and the ejectment of the plaintiff would, as is not denied, cause him an irreparable injury.

V. This court has, in a number of instances, restrained the commencement of summary proceedings to prevent a wrong; there is nothing in the law of 1867 to prevent the continuance ☻of that practice. The amendment does not change the Revised Statutes in this regard.

VI. It is not now material whether the landlord had notice of the meeting of the arbitrators, nor whether the omitting to give notice made the award inoperative. It is • sufficient that the plaintiff has a right of renewal which has not been perfected, but the right to which will be taken from him if this court denies its equitable interposition.

*I. T. Williams,*for the respondents, defendants.

I. The complaint prays that Frederick P. James execute and acknowledge the lease. Frederick P. James swears that he has not, and never had, any power to make or give the lease in the action prayed for. The answer of the defendant Edward D. James, fully explains the relation which Frederick P. James sustained to the premises, and alleges that that relation has long ago ceased to exist; *471The lease contains a covenant on the part of Sarah James, by Edward D. James, her attorney, to renew the lease upon a compliance with the terms therein specified. Sarah James was then the owner beyond the power of the plaintiff to dispute, and she is made a party defendant to this action. There is no allegation in the complaint, which, if taken to be true to all intents and purposes would entitle the plaintiff to a lease from F. P. James. (1.) The fact that this lease was assigned and transferred to him would not entitle him, or give him power, to execute a renewed lease. (2.) The allegation that he is “ landlord ” of said premises is a conclusion of law based upon the allegation of the lease, and in a pleading is an utterly worthless and void allegation. (3.) The remainder of the sentence is pregnant with the averment that his whole claim to be landlord was only “pretended,” and that, at the time this action was commenced, he did not even so pretend.

II. The moving papers do not allege, and the opposing papers expressly deny, any notice of the time and place of the hearing of the parties, or of the making of the award. (8 Peters, 178. 3 *Dow*& *P.*102. 9 *Shaw Dunl.*797. *Elmendorf*v. *Harris,*33 *Wend.*628. *Jordon*v. *Hyatt, 3 Barb.*275. *Peters*v. *Newkirk,*6 *Cowen,*103. *Knowlton*v. *Mickles,*29 *Barb.*465. *Bulson*v. *Lohnes,*29 *N. Y. Rep.*291.)

III. The award is made and signed by but one of the arbitrators, where the- lease provides that it shall be done by all the three. (1 *Bos. & Pul.*236. 3 *T. R.*592. *Cro. Jac.*100, 278. *Barnes,*57. *Willes,*215. *Green*v. *Miller, 6 John*39. *Cope*v. *Gilbert, 4 Denio,*347. *People v. Walker,*23 *Barb.*304. 2 *Abb.*421.)

IV. The authority to one of the arbitrators, (Wesley) was revoked, and he resigned, and declined to act, before the meeting of the arbitrators, if, indeed, the other two ever met. *(Relyea*v. *Ramsay,*2 *Wend.*602. *Frits*v. *Frits,**4721 *Cowen,*335. *Holliday*v. *Marshall,*7 *John.*211. *Crofoot*v. *Allen,*2 Wend. 494.)

The order appealed from should be affirmed, with costs.

*By the Court,*Barbour, J.

This is an appeal from an order denying a motion for an injunction *pendente lite,*restraining the defendants from removing the plaintiff by a summary proceeding; the action being brought by a tenant against his landlord to compel the execution of a renewed lease.

The evidence read upon the motion shows that by the terms of the original lease the tenant was entitled to a renewal, provided he should, within a certain period, give notice in writing to the landlord of his intention to take the same, and insert in such notice the name and residence of an arbitrator appointed by him; that a like arbitrator should, in that case, be appointed by the landlord within ten days thereafter, and that such arbitrators should determine the amount of rent to be paid, or, if they should fail to agree, then the amount of the rent should be fixed, on or before the 10th of February, by the two arbitrators *together with*an umpire to be chosen by them. It further appeared that the notice was duly given, including the name, &c. of the plaintiff’s arbitrator, and that the landlord, within ten days, appointed one on his part: that the arbitrators failed to agree as to the amount of the rent, and, thereupon, mutually appointed an umpire; that, after such appointment, and prior to any determination by them, the landlord withdrew and revoked the appointment of his arbitrator, who thenceforth refused to act with the others. FTotwithstanding this, however, the umpire alone, on the 10th of February, fixed and determined the amount of the rent at $3000 per year; but the landlord refused to execute the new lease as requested by the tenant.

If these facts, when established upon the trial, will *473entitle the plaintiff to the relief demanded in the complaint, the motion for an injunction *pendente lite*ought to have been granted. For, the tenant in possession at the termination of. the original lease, cannot, in a summary-proceeding before a magistrate to evict him as holding over after the expiration of his term, avail himself of the fact that he is equitably entitled to a new and further lease from his landlord; that question not being within the jurisdiction of a magistrate, in such a proceeding. The exhibition of the original lease in evidence, with proof of the holding over after that term is ended, will be sufficient to enable the landlord to recover possession of the premises, notwithstanding the equitable right of the tenant to remain and to have an extended lease.

The question, therefore, is, whether the facts set forth in the affidavits constitute a cause of action entitling the plaintiff to the relief demanded.'

The original lease, as has been stated, provides that the amount of the rent shall be fixed by the two arbitrators, or, in case of their disagreement, then, by the two arbitrators together with the umpire; thus making this case an exception to the general rule which authorizes an umpire to render an award by himself, alone, in case neither of the arbitrators shall agree with him. I think, therefore, that the decision of the umpire alone, without the concurrence, so far as appears, of either of the arbitrators, did not legally determine the amount of the rent which the tenant should pay.

But I am of opinion that the act of the landlord in withdrawing his arbitrator must he considered as having prevented the meeting of the three, and the probable agreement of the majority of them in an award; and if that is so, it follows, that, although the amount of the rent has not been determined by the arbitrators, the tenant cannot, without a violation of the principles of equity, be deprived *474of his right to a renewed lease by this act of the landlord, but that he is now entitled to the lease for such amount of rent as shall be found just and proper upon the trial of this action. It appears to me, therefore, that the learned judge erred in denying the motion for an injunction.

The order appealed from should be reversed, and an order of injunction granted, with costs.