160 N.Y.S. 177 | N.Y. Sup. Ct. | 1916
“I have caused the summons to be issued herein and an action against all of the defendants for injury to property by reason of the foregoing acts of the defendants, claiming treble damages as provided in section 1669 of the Code of Civil Procedure.”
The affidavits do not state that any other cause of action will be set forth in the complaint, or that any other judgment will be asked than one for damages. That action under the section referred to, for forcible entry or detainer, is an action at law. Fults v. Munro, 202 N. Y. 34, 40, 95 N. E. 23, 37 L. R. A. (N. S.) 600, Ann. Cas. 1912D, 870. Hence there is no basis for injunctive relief.
The papers convincingly show that at the time the order to show cause was granted, on which this matter came on to be heard, the plaintiff was out of possession of the premises and that they were then in possession of the defendants. There is a conflict in the papers as to whether the plaintiff voluntarily abandoned the hotel, or whether he or his representatives were put out of possession by the defendants. The defendants claim that the plaintiff failed to keep the hotel .open, did not pay the help or the band, did not pay Webber for supplies furnished, and violated provisions of his lease which justified the owner in declaring it forfeited; and it appears that the owner notified Webber that there had been default by the plaintiff.
While there is some conflict in the papers, it seems to be established that the plaintiff did not pay the help or the band, and did not pay Webber the amount due him. Webber claims that he took possession of the hotel in order to protect himself from liability on the bond, acting under the assignment executed by the plaintiff to his nominee. Under these conditions, no mandatory injunction should be granted pending the trial of the action. The plaintiff, being out of possession, cannot properly be put back in such a summary action, where the defendants are in possession under a claim of right. Black v. Jackson, 177 U. S. 349, 361, 20 Sup. Ct. 648, 44 L. Ed. 801; Troy, etc., R. R. Co. v. Boston, etc., R. R. Co., 86 N. Y. 107, 122; Bachman v. Harrington, 184 N. Y. 458, 77 N. E. 657; Oppenheim v. Thanasoulis, 123 App. Div. 494, 108 N. Y. Supp. 505.
It follows that the motion must be denied, and the injunction obtained in the order to show cause vacated.