Grissler v. Stuyvesant.

other relief as may be fit, and that the defendant pay the costs of this action.

The defendant demurred to this complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

The court, at Special Term, made an order sustaining the demurrer, and directing the complaint to be dismissed with costs to the defendant.

John J. Townsend, for the appellants. The question raised by the demurrer is one of very great simplicity and importance. In the Superior Court, the defendant, in three actions, is seeking to eject the plaintiffs as trespassers, and claiming damages in lieu of rents and profits. At the same time he seeks to recover possession by proceeding before a magistrate, on the ground that they are his tenants by agreement. This affirmance of contrary propositions can be permitted under no circumstances. The toleration of it is inconsistent with the plainest principles of justice. (Sanger v. Wood, 3 Johns. Ch. R., 421-422.)

The plaintiffs are entitled to a reversal of the order dismissing the complaint, and of the judgment dismissing the complaint.

Dismissal of the complaint is equivalent to a nonsuit, which can only be incurred on a judgment as in case of nonsuit rendered for a failure of proof or some matter extrinsic of the pleadings, and altogether irrespective of the merits of a complaint.

Upon the trial of an issue of law the plaintiffs are entitled to have the complaint stand, and to have the benefit of all the allegations which it contains.

Douglas Campbell, for the respondent. The demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action was properly sustained. The allegation that another action

Grissler v. Stuyvesant.

was pending, was not an issue that could be raised or made a defence to summary proceedings. (Duigan v. Hogan, 1 Bosw., 647.) The only case where an injunction can issue to restrain summary proceedings is where they are used as a means of fraud. (Ward v. Kelsey, 14 Abb., 106. Marks v. Wilson, 11 Abb., 87. Springsten v. Powers, 3 Rob., 483. Marry v. James, 37 How., 57.)

By the Court, INGRAHAM, P. J. The only cause of action stated in the complaint is that the defendant had brought an action of ejectment in the Superior Court, against the plaintiffs, for the recovery of certain real estate, and had afterwards commenced summary proceedings to recover possession of the same premises, for non-payment of rent. That the proceedings of the defendant, in procuring such summons, are injurious to them and an abuse of the proceedings under the statute. To this the defendant demurs.

It is difficult to see any good cause of action above stated. It is no ground for an injunction that the proceeding is injurious to a party, if such proceeding is proper. If it is not legal for the party to take such remedy, it should be defended by showing such illegality in the proceeding sought to be enjoined. Success in either of those proceedings can be pleaded to defeat the other.

The demurrer was properly sustained, and the judgment should be affirmed only so far as to render judgment on the demurrer, with costs. So much as dismisses the complaint is vacated.

[FIRST DEPARTMENT, GENERAL TERM at New York, November, 1873. Ingraham, Fancher and Davis, Justices.]

GRISSLER & FAUSEL vs. STUYVESANT.

The statute gives an allowance on the amount recovered or claimed, or the subject-matter involved. In the latter case such value is to be ascertained by the court.

The only relief sought in an action was an injunction to restrain summary proceedings for the dispossession of the plaintiffs from certain premises, and that only for a limited period. No money was sought to be recovered, and no property was the subject-matter of the action. Held, that there was nothing in the case on which an allowance could be estimated; the subject-matter involved being the right to prosecute the summary proceedings, the value of which right it was not practicable to estimate.

A

PPEAL, by the plaintiffs, from an order made at a Special Term, granting to the defendant an extra allowance of $750.

The action was commenced by the plaintiffs to abate dispossession proceedings commenced against them by the defendant, and to obtain an injunction to restrain such proceedings in future. The only cause alleged by the plaintiffs for demanding such relief was the pendency of actions brought against them by the defendant for the recovery of the same property. The defendant demurred to the complaint. The court, at Special Term, made an order sustaining the demurrer and dismissing the complaint, which was affirmed at General Term. (S. C., ante, p. 77.)

The only

John J. Townsend, for the appellants. matter involved in this action is the abstract right of the defendant to pursue inconsistent remedies. The Code, 309, gives the court no power to make an allowance in such a case. The power of a court to make an allowance in any case is exceptional, and ought to be abolished, or restrained within very narrow and clearly defined limits. Where the rights in controversy have no money value an allowance cannot be made. (The People v. The Albany and Susquehanna R. R. Co., 5 Lansing, 25, 36.) If the plaintiffs are entitled to a reVOL. LXVII.

6

Grissler v. Stuyvesant.

versal of the order dismissing the complaint, they are entitled to a reversal of the order for an allowance which was predicated upon it.

Douglas Campbell, for the respondent. The extra allowance was properly granted. The dispossession proceedings were commenced to recover property worth $100,000, or a balance of about $15,000 of rent. This action was brought to obtain an abatement of such proceedings, and a permanent injunction to restrain similar proceedings in future. The defendants claimed, in arguing the motion before Judge FANCHER, that a proper basis of allowance was the value of the real estate itself, but he held that the rent due was the correct basis. The plaintiffs can hardly complain of this. On the most favorable construction for them, this was the amount of the subject-matter involved. The words of the Code are in the disjunctive: "Upon the amount of the recovery or claim, or subject-matter involved." The value of the property to be directly affected by the result of an action affords a proper basis for computing the percentage authorized by section 309 of the Code in difficult and extraordinary cases. So held where the action was brought to restrain the defendants from discontinuing and removing a railroad. (People v. A. & V. R. R. Co., 16 Abb., 465.)

In a strict sense, the amount of the plaintiffs' claim was nothing, but they were attempting to prevent the defendant from recovering his property or his rent, and that was the amount involved.

By the Court, INGRAHAM, P. J. The only relief sought in this action was for an injunction, and that only for a limited period. No money was sought to be recovered, and no property was the subject-matter of the action.

The statute gives an allowance on the amount recov

Elwell v. Grand Street and Newtown Railroad Company.

ered or claimed, or the subject-matter involved. In the latter case such value is to be ascertained by the court.

There was nothing in this case on which an allowance could be estimated, nothing received, and no money or property claimed in the action. The subject-matter involved was the right to prosecute the pending proceedings before the justice. It is not practicable to estimate the value of that right. The determination whether the plaintiff shall be permitted to prosecute the summary proceedings did not involve the recovery of the lands nor of the rent alleged to be due.

The decision on the demurrer did not affect the right to the rents, nor the right to the lands.

The remedy of the defendant for expenses and damages in restraining his proceedings should be had on the injunction undertaking.

The order should be reversed.

[FIRST DEPARTMENT, GENERAL TERM at New York, November, 1873. Ingraham and Davis, Justices.]

JOHN P. ELWELL and others vs. THE GRAND STREET AND NEWTOWN RAILROAD COMPANY.

A mortgage upon a railroad not completed at the time the mortgage was executed, in terms conveyed the franchise of the company, and all property to be acquired, describing the road as it was then projected. Before the road was completed, a change was duly made in the route. Held, that the mortgage as executed bound the road as built; that the bondholders, to secure whose debts the mortgage was given, acquired a right to have the road, as built, sold to pay their bonds; and that purchasers at the foreclosure sale bought, and held, all that the bondholders had a right to have sold. Although the resolution authorizing the giving of a mortgage, by a railroad company, does not give the president and secretary authority to make so extensive a mortgage as the one in fact executed; yet after the bondholders have advanced their money in good faith, and it has been received and used by the company in constructing its road, this will be deemed a ratification of the contract under which the money was obtained.