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ORVIS Y, NATIONAL COMMERCIAL BANK OF NEW YORK et al.

(Supreme Court, Appellate Division, First Department. March 13, 1903.) 1. LEASE-BREACH OF COVENANT-INJUNCTION PENDENTE LITE.

Under a lease of premises to be used "for the conducting of a banking business," the lessee used the premises for a while for such purposes, but subsequently, without the lessor's consent, sublet them to a restaurant keeper doing business in the adjoining building, and in order to connect the two buildings arches were cut through the intervening wall. Plaintiff claimed that such action was a breach of a covenant in the lease, and the defense was that the restrictive words therein created at most only a condition which had been dispensed with by plaintiff. Held, that an injunction restraining the further cutting of the walls and the using of the premises as a restaurant until the rights of the parties could be formally

determined in the trial was properly granted. 2. SAME-CONSTRUCTION OF INJUNCTION ORDER.

An order enjoining defendant from using premises for any other than a banking business “during the pendency of this action," is clearly only an injunction pendente lite. Appeal from Special Term.

Action by Sarah M. Orvis, as executrix of the estate of Thomas Storm, deceased, against the National Commerical Bank of New York and another. Defendants appeal from an order continuing an injunction during pendency of action. Affirmed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, INGRAHAM, and LAUGHLIN, JJ.

Henry A. Forster, for appellants.
Jacob F. Miller, for respondent.

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VAN BRUNT, P. J. The action was brought for the purpose of compelling an observance of the terms of a lease respecting the use of property. The lease contains a clause as follows: "That the said party of the first part has letten

and the said party of the second part has hired and taken

the first floor of the building No. 287 Broadway

to be used by the party of the second part for the conducting of a banking business."

The defendant bank entered into possession and used the premises for a while for banking purposes. While negotiations were pending, or after they were terminated, looking to some arrangement for the cancellation of the lease, or subleasing to another tenant, the defendant, without the consent of the plaintiff, sublet the premises to the defendant Childs, who was conducting a restaurant business in the adjoining premises; and, for the purpose of connecting the two buildings, three arches were cut through the intervening wall, and thus communication was opened from the lunch room of the defendant Childs to the premises of the plaintiff, which had been rented to the defendant for banking purposes. Thereupon this action was commenced, and an injunction asked for, which was obtained, and, on motion, was continued pendente lite. The plaintiff's claim is that the action of the defendant bank was a breach of a covenant in the lease; and the defense was that the restrictive words therein created at most and 114 New York State Reporter only a condition, and not a covenant, and that the condition had been dispensed with by the plaintiff, and thereby extinguished.

We think that the legal questions should be reserved until the trial, and that, on the facts here appearing, it was proper to grant an injunction restraining the further cutting of the walls of the building and the using of the premises as a restaurant until the rights of the parties could be formally determined upon the trial.

The appellants insist that the Special Term, on motion, granted a permanent injunction, which form of injunction can only be awarded by final judgment. We think, however, the appellants' construction of the terms of the order is without support. That only an injunction pendente lite was granted clearly appears from the last clause in the order, which states that the defendant is enjoined "from using and occupying said premises, or any part thereof, for any other than a banking business, during the pendency of this action.”

The order accordingly should be affirmed, with $10 costs and disbursements. All concur.

DONNER Y. MERCY et al. (Supreme Court, Appellate Division, First Department. March 13, 1903.) 1. ATTACHMENT-PROPERTY HELD BY Third PERSON-CERTIFICATE OF DEFEND

ANT'S INTEREST-REFUSAL TO GIVE.

Under Code Civ. Proc. $ 651, relating to attachments, and providing that if any person, to whom application is made for a certificate as to defendant's property in his hands, refuses to give such a certificate, or if it is made to appear by affidavit that there is reason to suspect that the certificate given is untrue, the court may order him to attend at a specified time and subniit to an examination, etc., it is not necessary, in order to secure the examination of a person who refuses to give a certificate, to show that he has property in his hands which would be subject

to levy. 2. SAME-AFFIDAVIT-SUFFICIENCY.

An affidavit of the deputy sheriff that he "duly effected service of such warrant of attachment on said J." (the person refusing to give the certificate), giving the place and time of the service, sufficiently alleges

service of the warrant. 8. SAME-RIGHT TO DEMAND CERTIFICATE.

Under Code Civ. Proc. $ 650, providing that, on the application of a sheriff holding a warrant of attachment, a debtor of the defendant, or a person holding property belonging to him, must furnish to the sheriff a certificate, specifying the amount and description of the property, etc., the right of the sheriff to demand the certificate does not depend on service

of the warrant. 4 SAME-AFFIDAVIT-SUFFICIENCY.

An affidavit of the sheriff that the person of whom the certificate was demanded failed to give a certificate to the effect that he did not hold any property of the defendant, or for the benefit of defendant, is insufficient, as for all that appears therefrom he may have given a certificate specifying what property he had which belonged to defendant.

Van Brunt, P. J., and O'Brien, J., dissenting. Appeal from Special Term, New York County.

Action by Phillip C. Donner against Meyer Mercy, in which an order was obtained requiring Lazor Jacobsohn to appear for examination concerning the property of the defendant. From an order denying a motion to vacate the said order, said Jacobsohn appeals. Reversed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ.

Henry W. Unger, for appellant.
Herbert H. Maas, for respondent.

INGRAHAM, J. On the 2d day of January, 1903, a warrant of attachment against the property of the defendant was issued and delivered to the sheriff. Upon an affidavit of the sheriff that he had duly effected service of such warrant of attachment on one Lazor Jacobsohn, in the city of New York, and that said Jacobsohn did not furnish the sheriff with a certificate to the effect that he did not hold any property belonging to the defendant, or for his benefit, though such certificate was duly demanded, an order was granted requiring Jacobsohn to appear for examination before a Justice of the Supreme Court under section 651 of the Code of Civil Procedure. That section provides that if a person to whom an application is made for a certificate as to the defendant's property in his hands“Refuses to give such a certificate, or if it is made to appear by affidavit to the satisfaction of the court, or a judge thereof, or the county judge of the county to which the warrant is issued, that there is reason to suspect that the certificate given by him is untrue, or that it fails fully to set forth the facts required to be shown thereby, the court or judge may make an order directing him to attend at a specified time, and at a place within the county to which the warrant is issued, and to submit to an examination under oath concerning the same."

Where a person refuses to give any certificate, it is not necessary, in order to secure the examination of such person, to show that the person sought to be examined has property in his hands which would be subject to a levy under the attachment. It is only where a certificate is given that the plaintiff must present to the court evidence to show that the certificate is untrue. The appellant criticises the affidavit of the sheriff upon the ground that there is no legal proof showing that a certificate was demanded from the appellant, or that he refused to give one to the sheriff. The allegation of the deputy sheriff is that he "Duly effected service of such warrant of attachment on said Lazor Jacobsohn at No. 260 Grand street, borough of Manhattan, city of New York, between two and three o'clock in the afternoon of Friday, January 20, 1903.”

This is the allegation of a fact. It is positive in form, stating the time and place of such service, and, we think, a sufficient allegation of the service of the warrant of attachment.

The right of the sheriff, however, to demand a certificate, under section 650 of the Code, does not depend upon the service by him of the warrant of attachment, or a levy under the attachment. That section provides that, upon the application of a sheriff holding a warrant of -attachment, a debtor of the defendant, or a person holding property belonging to him, must furnish to the sheriff a certificate specifying the amount, nature, and description of the property held and 114 New York State Reporter for the benefit of the defendant, or of the debt or demand owing to the defendant, as the case may require. By section 651 of the Code, a person refusing such a certificate must submit to an examination. To entitle the plaintiff to the examination, however, it must appear either that the person sought to be examined failed to give any certificate, or did give a certificate which there is reason to believe is untrue. The affidavit of the sheriff is that the appellant failed to give a certificate to the effect that he did not hold any property belonging to the defendant, or for the benefit of the defendant. That allegation would be true, if the appellant had given a certificate specifying what property he held belonging to the defendant, in which case the plaintiff would only be entitled to an examination of the defendant upon producing proof that there is reason to suspect that the certificate is untrue. If the appellant had refused to give any certificate, the plaintiff was entitled to an order for his examination. The affidavit of the sheriff, however, does not say he refused to give any certificate, but only a certificate to the effect that he did not hold any property of the defendant. This was not sufficient.

For this reason, the order appealed from must be reversed, with $10 costs and disbursements, and the order for the examination of the appellant vacated, with $10 costs, with leave to the plaintiff, upon payment of such costs, to apply for a new order upon proper papers. All concur, except VAN BRUNT, P. J., and O'BRIEN, J., who dissent,

LETSON V. LETSON et al.

(Supreme Court, Appellate Division, Fourth Department. March 10. 1903.) 1. DEED-ACTION TO SET ASIDE-EQUITABLE JURISDICTION.

Where a father, during his lifetime, executed a deed on his land to one of his sons, which deed the son obtained possession of in an unlawful manner after the father's death, and placed on record, and thereupon a brother, claiming a one-fourth interest in the land as heir of the deceased, brought an action to have the deed set aside and the record thereof can. celed, a court of equity has jurisdiction to grant the relief asked, even though the one bringing the action is not in possession of the premises. Appeal from Special Term, Erie County.

Action by Levi S. Letson against Joseph E. Letson and others. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Argued before ADAMS, P. J., and McLENNAN, SPRING, WILLIAMS, and NASH, JJ.

Wallace Thayer, for appellant.
John B. Richards, for respondents.

NASH, J. The plaintiff alleges in his complaint that he is the owner in fee simple of an undivided one-fourth of the premises described in the complaint; that his father, Myron H. Letson, died in the county of Erie May 16, 1902, intestate as to his real estate, and left, him surviving, as his only heirs at law and next of kin, the plaintiff and the defendants Joseph E. Letson and Clifford Letson, his sons, and two grandchildren, the defendants Myron E. Kobe and Iva B. Kobe, children of a deceased daughter; and that his father, at the time of his death, was the owner in fee simple of the premises the title to which descended to his three children and two grandchildren; that the father, in his lifetime, executed a warranty deed of the premises to the defendant Joseph E. Letson, which was never delivered, but that after his father's death Joseph E. Letson unlawfully obtained possession of the deed, and caused the same to be recorded in Erie county clerk's office on the 19th day of May, 1902; wherefore the plaintiff asks judgment that the deed be declared void and the record thereof canceled, and for such other and further relief as to the court may seem just and proper.

The demurrer was sustained upon the authority of the case of Howarth v. Howarth, 67 App. Div. 354, 73 N. Y. Supp: 785, where, upon a similar state of facts alleged, it was held that the complaint was defective in not alleging that the plaintiff was in possession of the real estate as to which it was sought to maintain an action to remove a cloud upon the title. The court there seems to have considered the case of Moores v. Townshend, 102 N. Y. 387, 7 N. E. 401, as an authority for the proposition that an action to quiet the title to lands cannot be maintained by one who is not in possession. We think that the case cannot be so regarded. The plaintiff in that action claimed title under a referee's deed in partition, and, there being no proof or finding that any of the parties to the partition suit or their grantors ever had title or possession of the premises, it was held that the proofs and findings were entirely inadequate to establish any title in the plaintiff as against a stranger to the action in which the deed was given. Ruger, C. J., after disposing of the case upon that ground, said:

"It is further urged by the appellant that the facts disclosed on the trial did not show any right on the part of the respondent to equitable relief. We think this point also is well taken. The only ground alleged for the relief demanded was the want of an adequate remedy at law, and yet the facts stated showed presumptively the existence of such a remedy and the falsity of such averment. No reason is a verred in the complaint why the plaintiff could not obtain all of the relief to which he was entitled by an action of ejectment, and an examination of the findings and evidence shows that none in fact existed. The complaint was manifestly insufficient in this respect." The opinion goes on to say: “We have been unable to find any case where a party out of possession has been allowed to sustain an action quia timet to remove a cloud upon title, except when it is especially authorized by statute, or when special circumstances existed affording grounds for equitable jurisdiction, aside from the mere allegation of legal title." And, after citing authorities: "In all the cases cited to the effect that equity will entertain jurisdiction to set aside assessments and conveyances as a cloud upon title, the party bringing the action was in possession of the property or other circumstances gave equitable jurisdiction." Thie cases of Lattin v. McCarty, 41 N. Y. 107, and Remington Paper Co. v. O'Dougherty, 81 N. Y. 474, he says, “have been cited to support the claim that actions to remove a cloud upon title and recover possession may be joined, and that courts of equity will entertain jurisdiction to give relief in such actions. We do not think that these cases sustain such a doctrine. In both of those cases special circumstances existed outside of the legal title and right to possession, which conferred the jurisdiction exercised.” And, referring to Lattin v. McCarty, Judge Ruger said: "The action there was sustained solely upon the ground that the defendants held the legal title

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