H. Koehler & Co. v. Brady ( 1897 )

Ingraham, J. (dissenting):

The difficulty attending the decision of this case, and the uncertainty as to the right of the plaintiff to recover, and as to just what relief it was entitled to, appears to have been caused by the manner in which the complaint was framed, as nobody yet appears to have been satisfied as to just the theory upon which the plaintiff asks for any relief. The facts alleged are, that the defendant, being the owner of certain property which he bad leased, and upon which lease this plaintiff had a lien, obtained possession of the property and refused to recognize the plaintiff’s right to possession as mortgagee of the lease. In this condition the plaintiff asks a court of equity to interfere by a mandatory injunction' to put it into possession of the premises of which it never had possession, the right to the possession of which depends upon a mortgage upon a lease which has never been foreclosed, thus allowing an action in equity to be commenced to recover the possession of real estate, instead of leaving the plaintiff to its action of ejectment. No case is cited by which a court of equity has ever thus interfered to put a person in possession of real property. When a lessee, or one claiming the right to occupy that relation, is in possession of property, courts of equity have interfered to prevent that possession from being disturbed, either by the landlord or any other person;, but this plaintiff never was in possession; never demanded possession of the property from the mortgagor, and, so far as appears, never demanded possession of the property until the landlord had resumed possession. I know of no proceedings that can, by the use of a mandatory injunction, thus take the place of an action of ejectment, to recover the of real property by one who is out of possession, and who has never had. such possession. I do not understand thafe either the decision of the late General Term or of the Court of Appeals has held that, such an action can be maintained. It is evident from the opinion delivered at the General Term that the court was extremely doubtful as to the nature of the action; and certainly the views expressed by the Court of Appeals upon this complaint do not tend to remove that doubt. If this defendant refused to recognize the plaintiff as bis tenant and refused to give it the possession of the leased premises, the plaintiff bad either its action of ejectment to recover the possession of the premises or its-action against the landlord for damages. It does not seem to me that in addition it. could get possession of the property through means of a mandatory injunction. I think* therefore, that there was no cause of action either alleged or proved in equity, and that, the complaint should have been dismissed.