#### Mary T. Bean, plaintiff and appellant, *vs.*Samuel M. Pettengill, defendants and respondents.

1. This court, as a court of equity, ought not to enjoin, by order, lessors from taking summary proceedings to dispossess their lessees, pursuant to a covenant contained in the lease of the premises in question, whereby the latter agreed to surrender possession upon ten days’ notice, at any time before the end of the term, and a notice given in pursuance thereof, even if such covenant have been waived by parol. Although, under such a covenant, the refusal of the lessees to remove may have been a mere breach of it, and a notice pursuant to it could not terminate the lease, or if it could otherwise have done so, .the parol agreement prevented its effect, and therefore the officer before whom proceedings were taken would have no jurisdiction, the remedy at law was ample and perfect, by writ of prohibition.

*82. This court should not, by order, enjoin the defendants, who were lessors, *generally*from interfering with the possession of the plaintiff, where there is no allegation in any of the moving papers that the defendants threatened or intended so to interfere, otherwise than by such summary proceedings.

3. *JEstcrppeU in pais*are based simply upon certain rules of evidence, whereby,, in consequence of certain matters having occurred, a party is precluded from availing himself of certain facts, or a certain claim or defense, which he would be otherwise entitled to rely upon; and they are the same in actions at law and suits in equity.

4. The mere apprehension, by a plaintiff, of the defendants being about to commit certain acts, without proof of circumstances *prima facie,*at least, warranting it, does not justify this court in making an order enjoining them from committing such acts.

(Before Barbour, Garvin and Jones, JJ.)

Heard December 6, 1866;

decided May 17, 1867.

This was an appeal from an order refusing to enjoin the defendants from taking summary proceedings to dispossess the plaintiff from certain premises.

The complaint sets forth a lease, whereby the defendants demised to the plaintiff certain premises for a term, to expire May 1, 1867. The lease contained a covenant by the plaintiff to vacate them at any time, upon receiving ten days’ notice from the defendants to do so, at their option; and after the expiration of ten days after such notice to remove, to quit and surrender the premises in as good state and condition as the reasonable use and wear thereof would permit, and not to use said premises for any other purpose than as a private residence. The complaint then alleged, that about August 22, 1866, the plaintiff was promised by one of the defendants that they would waive the last mentioned covenants of the lease, and would not enforce the same during the continuance of the year, or until the 1st of April, 1867; and furthermore agreed with the plaintiff that she might continue to occupy the premises during the continuance of the year, or until the 1st day of April, 1867. It further alleged, that the plaintiff, at the time this promise and *9agreement was made to and with her, informed the defendants that her object in obtaining such promise and agreement was to secure another house in case they intended to enforce such covenant, and that she contemplated making repairs and improvements on the premises, in case she could continue therein; that after receiving such promise she made extensive improvements, and otherwise fitted up said premises for her convenience, at an expense to her of $5000; but that the defendants, notwithstanding such promise and agreement, had given her the ten days’ notice provided for by the lease, and commenced summary proceedings before the city judge of the city of Yew York, to dispossess her; that the defendants, in their affidavit made to initiate such proceedings, claimed, that the term granted by said lease had expired, by reason of ten days having elapsed since the giving of such notice; that said city judge, on motion made by the plaintiff before him to dismiss said summary proceedings, on the ground that he had no jurisdiction thereof, refused to dismiss them, deciding that he had jurisdiction, and adjourned the proceedings to October 8, 1866, for trial; that the defendants threatened to go on with such summary proceedings, and claimed that the said promise and agreement made by them were void at law; that, as the plaintiff is advised, the said promise and agreement cannot be enforced in such summary proceedings, inasmuch as the city judge has no jurisdiction in equity, and she has no remedy except in a court of equity; that, unless the defendants were restrained, she feared they would succeed'in dispossessing her, thereby inflicting irreparable injury, in the loss of benefits and advantages to be obtained from her expenditure in repairs and improvements upon said premises, and otherwise.

The only relief demanded was an injunction order against the defendants, restraining them from prosecuting *10the proceedings before the city judge, or in any manner interfering with the possession of said premises by the. .plaintiff, on the ground that the term demised by said lease had expired, or that the plaintiff was holding over the said possession.

On this complaint, duly verified, an order was granted, requiring the defendants to show cause, at a special term, why an injunction should not issue, as prayed for, and a temporary stay was issued.

■ The defendants appeared, and showed cause, and read their answer, wherein they, among other things, expressly denied that the plaintiff had made any improvements or repairs whatever on said premises. The judge, at special term, denied the motion for an injunction order, and vacated the temporary stay. From the order on such motion the present appeal was taken.

*E. N. Dodge,*for the appellant.

*A. G. Hull,*for the respondent.

*By the Court,*Jones, J.

It is evident, from the plaintiff’s complaint, that her claim to an injunction order, rests on some one, or all, of the three following grounds :

1. That no steps taken by the landlord, under the ten day clause of the lease, can have the effect of terminating the term demised; and that the refusal to remove, pursuant to such notice, is a mere breach of covenant, for which summary proceedings will not lie, and, therefore, that the landlord’s affidavit, presented to the city judge, shows, on its face, a want of jurisdiction.

2. That, by virtue of the parol agreement, (if proved, and is founded on sufficient consideration,) the term continued; and, therefore, the city judge has no jurisdiction.

*113. That there being no consideration for such parol agreement, it can only be enforced in equity on the ground, that the plaintiff) relying on the promise, has made an outlay of large sums upon the premises, which she will wholly lose, if the agreement be not fulfilled.

Assuming the propositions of law contained in the first two grounds to be correct, still equity will not, on such grounds, interfere by injunction, inasmuch as the plaintiff has an adequate and perfect remedy at law, by writ of prohibition, to prevent the city judge from exceeding his authority.

The only principle suggested by the appellant’s counsel upon which the parol agreement, being without con-' sideration, can be made to operate for the benefit of the plaintiff, is that appertaining to *estoppels in pais.*He, however, is in error in supposing that the principle of an *estoppel in pais*can be applied only in equity. The principles,! ' on which the doctrine of *estoppels in pais*is based, arel simply rules of evidence, by which, in consequence ofl certain matters having taken place, a party is precluded! from proving certain facts, or relying on a certain claim/ or defense, which he otherwise would be entitled to prove, or to rely on. These rules are the same in actions at law and suits in equity.

Thus much as regards the injunction against proceedings before the city judge.

As regards the prayer for an injunction order against the defendants, in any way interfering with the possession of the plaintiff, there is nothing to warrant such order. There is no allegation in the complaint, that the defendants threaten or intend to interfere with such possession, otherwise than by the proceeding before the city judge; and there is nothing in any of the papers indicating any such intention on their part. The bare allegation of a fear, that the defendants are about to do some act, with*12out any allegation of some facts or circumstances which, *prima facie,*justify such fear, will not authorize the making of an injunction order to restrain the commission of such apprehended acts.

There being, thus, no ground for equitable interference shown by the complaint, the order appealed froin must be affirmed; no costs of appeal to either party.

Ordered accordingly.