First Department, April, 1921. [Vol. 195. In the meantime, not be continued, pending the appeal from the order appointing the receivers. Thereupon, with the consent and approval of the attorney for the plaintiff, they employed counsel to represent them on the return of the order and advised with him. Their attorney and counsel appeared and represented them on the return day of the order to show cause. The stay was continued pending the appeal from the order. a similar action was brought by one Canham, a stockholder of the company, in his own behalf and in behalf of all other stockholders similarly situated, and the plaintiff therein is represented by the attorney who is the attorney of record for the plaintiff herein, and a motion was made therein for the appointment of ancillary receivers and the motion was granted; but the order appointing the receivers had not been entered when the order now under review was made. The plaintiff on affidavits made by himself and his attorney showing these facts, and on a stipulation signed by the attorneys for all the parties to the action to the effect that this action might be discontinued without costs to any party against the other, that the order appointing the receivers might be vacated and set aside, that the undertaking filed by the receivers might be canceled and discharged, and that the receivers might be discharged, and that the notice of appeal from the order appointing the receivers might be withdrawn and the appeal dismissed, and that an order to that effect might be entered without notice, moved on notice to the receivers and to their attorney for the order of discontinuance and for the other relief specified in the stipulation. The motion was opposed by the receivers on an affidavit made by one of them and another by their attorney, showing the services they had rendered and the expenses they had incurred, and praying that the value of their services and the amount of their disbursements and a reasonable allowance for the services of their attorney and counsel be ascertained and that the plaintiff be required to pay the same. Their objection to the discontinuance of the action without any provision being made for payment for their services and for reimbursing them for their expenses and providing an allowance for their attorney and counsel was overruled on the ground, as shown by the memorandum opinion, that there was no authority for requiring such App. Div.] payment by the plaintiff, and that inasmuch as the company had no notice of the motion, payment could not be required by it. Without regard to whether a domiciliary receiver of a foreign corporation has been appointed, the courts of a State in which the corporation has property have jurisdiction to intervene in behalf of stockholders and, through a receivership of the property within the jurisdiction of the court, to preserve the assets of the corporation against waste, unlawful diversion or mismanagement; and, therefore, even though plaintiff improperly invoked the jurisdiction of the court, there was jurisdiction to appoint the receivers. (Goss v. Warp Twisting In Machine Co., 133 App. Div. 122; Hallenborg v. Greene, 66 id. 590; Mac Nabb v. Porter Air-Lighter Co., 44 id. 102; Woerishoffer v. North River Construction Co., 6 Civ. Proc. Rep. 113; affd., 99 N. Y. 398; Mabon v. Ongley Electric Co., 156 id. 196.) Of course, payment could not be required of the defendant company or the individual defendants, not only on the ground that they had no notice of an application for such relief, but because the plaintiff had stipulated with them that the order appointing the receivers be vacated and the appeal withdrawn and the receivers discharged and their bond canceled, and the action might be discontinued without costs. There was no determination of the issues on the merits, and manifestly neither the corporation nor the individual defendants could be compelled to bear the expenses of the receivership without proof that the facts warranted the appointment of the receivers. That was an issue presented by the pleadings, but the plaintiff in his desire to discontinue the action withdrew the issue without any adjudication thereon. The other theory, however, on which the request of the receivers was disregarded plainly is erroneous. The receivers were officers of the court and they were appointed as such at the instance of the plaintiff, who presented facts showing a prima facie case for their appointment. It is the duty of the court to protect and enforce the rights of its receivers. If the action had been continued and the theory on which they were appointed was sustained, their expenses and their commissions would come out of the funds of which they were given the custody; but where, as here, APP. DIV.-VOL. CXCV. 55 First Department, April, 1921. [Vol. 195. plaintiff relieves the corporation and other defendants from all liability by stipulating for a discontinuance, he personally thereby assumes responsibility for the payment of the services and disbursements of the receivers, and the value and amount thereof may be determined by the court by a reference and he should be required to pay the same. (Willis v. Sharp, 12 N. Y. Supp. 120; Weston v. Watts, 45 Hun, 219; Pittsfield Nat. Bank v. Bayne, 140 N. Y. 321-331; Erwin v. Collier, 2 Mont. 605; McAnrow v. Martin, 183 Ill. 473; Horn v. Bohne, 96 Md. 8; Ogden City v. Bear Lake & River Water-Works & Irr. Co., 52 Pac. Rep. 697; City of St. Louis v. St. Louis Gaslight Co., 11 Mo. App. 237; High Receivers, §§ 796, 796-a, 805, 809-a; 34 Cyc. 352.) It follows that the order should be modified, with ten dollars costs and disbursements to appellants, by adding after the last paragraph thereof a new paragraph as follows: "And it is further ordered that the plaintiff pay to the receivers reasonable compensation for their time and services and their necessary disbursements and the reasonable value of the services of their attorney and counsel and that a referee be appointed to take evidence with respect thereto and report the same together with his opinion thereon and that the action shall be deemed continued for those purposes only until the payment by the plaintiff of such compensation, disbursements and expenses when determined by the court and the costs of the appeal and ten dollars costs for opposing the motion and the costs of the reference, but shall be deemed discontinued as against the defendants," and the matter is remitted to the Special Term for the appointment of a referee and the further steps specified. DOWLING, SMITH, MERRELL and GREENBAUM, JJ., concur. Order modified, with ten dollars costs and disbursements to appellants, by adding the provision stated in opinion, and the matter remitted to the Special Term for the appointment of a referee and the further steps specified. Settle order on notice. App. Div.] First Department, April, 1921. EDWARD D. LOUGHMAN, Appellant, v. CHARLOTTE H. LILLIENDAHL, Respondent. First Department, April 1, 1921. Landlord and tenant - possessory remedies — injunction granted to restrain summary proceedings pending suit for specific performance of an agreement to renew lease adequate remedy could not be afforded plaintiff in summary proceedings in Municipal Court of City of New York - summary proceedings tried after denial of injunction — injunction order not issued on appeal leave to apply for injunction if judgment in summary proceedings reversed. Summary proceedings instituted in the Municipal Court of the City of New York to dispossess the plaintiff at the termination of the lease will be restrained in a suit by the plaintiff to compel specific performance of an agreement to renew the lease, for while plaintiff could defend the summary proceedings on the ground on which he claims to be entitled to equitable relief in this action, the Municipal Court was without jurisdiction to require the defendant herein to execute a renewal or extension of the lease and, therefore, plaintiff had no adequate remedy. As it was claimed that the injunction was sought for delay, the motion therefor should have been granted on condition that the plaintiff, at the election of the defendant, stipulate for a reference and immediate trial. The issues in the summary proceeding having been tried and decided in favor of the defendant herein after plaintiff's motion for an injunction was denied, it is too late to enjoin the summary proceeding in its present status, but the defendant is entitled to have the order denying his motion for an injunction reversed and to recover costs and disbursements of the trial and the costs of the motion for the injunction. The injunction order may be hereafter issued only upon the application of the plaintiff, which may be ex parte, on proof that the final order in summary proceedings has been reversed or vacated, and upon plaintiff's filing a stipulation for a reference and immediate trial. APPEAL by the plaintiff, Edward D. Loughman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of January, 1921, denying plaintiff's motion for an injunction pendente lite from prosecuting a summary proceeding instituted in the Municipal Court of the City of New York, Seventh District, Borough of Manhattan, for the removal of the plaintiff from certain premises as a holdover tenant. First Department, April, 1921. [Vol. 195. James S. Darcy of counsel [Loughman & Bailey, attorneys], for the appellant. Joseph R. Swan of counsel [Swan, Moore & Danforth, attorneys], for the respondent. LAUGHLIN, J.: This action is for the specific performance of an agreement contained in a written lease executed by the parties on the 16th day of October, 1917, whereby the defendant, as landlord, agreed to renew the lease, which was of a private one-family house, known as 630 West One Hundred and Fifty-eighth street, for a period of from one to five years from November 1, 1918, at the election of the plaintiff. The plaintiff alleges that he duly exercised his option for the renewal of the lease for the period of three years; but that the defendant has failed and refused to execute a renewal lease for that period, although due demand therefor has been made, and that the defendant claims that the plaintiff's right to occupy the premises will expire on the 31st of October, 1920, and is offering the premises for sale and threatens to remove the plaintiff therefrom. The relief demanded is the execution of the renewal or the extension of the lease and an injunction pendente lite against dispossess proceedings or an ejectment action. The action was commenced on or about the 2d of July, 1920. On the 4th of January, 1921, the defendant instituted the summary proceeding for the removal of the plaintiff on the ground that he was holding over after the expiration of his term, and in order to comply with the requirements of chapter 942 of the Laws of 1920 (adding to Code Civ. Proc. § 2231, subd. 1-a), it was further alleged in the petition that the landlord was desirous in good faith of obtaining possession of the premises for immediate personal occupation as a dwelling by herself and her family. The plaintiff thereupon applied for a temporary injunction restraining the prosecution of the summary proceeding pending the trial and decision of the issues herein. He could defend against the summary proceeding on the ground on which he claims to be entitled to equitable relief in this action; but the Municipal Court was without jurisdiction to require the defendant to execute a renewal or extension of the lease. Since the Municipal Court |