concurrence">O’Brien, P. J.

(concurring):

I concur in the conclusion reached by Mr. Justice Clarke, and for the following reasons:

He states that plaintiff “ has set up in his affidavits facts and circumstances which, if alleged in the complaint, might have been sufficient to entitle him to the remedy therein demanded, and so warrant the order here appealed from. But the complaint contains no such matter.” I agree that this latter statement is correct, but I am of opinion that if the facts and circumstances stated in the affidavits' had been included in the complaint the plaintiffs would have been entitled to an injunction pendente lite. The law is well settled that “ the landlord has no right upon his tenant’s premises during the term, without the tenant’s consent, unless such right of entry is reserved in the letting. Every unlawful entry upon the premises of another is a trespass, and, whether the owner suffer much or little, he is entitled to recover some damages.” (Shannon v. Burr, 1 Hilt. 40.)

The Deitschs under their original lease had been in possession *678from October, 1903, until August 31, 1905, and having the right to assign the lease to -the plaintiffs, the landlord, Corn, had no more legal right than a stranger to interfere with plaintiffs going into possession. For such an unlawful interference with the plaintiffs’ rights they would ordinarily have an adequate remedy at law for damages. And that a tenant also has the right to enjoin a trespass is also abundantly supported by authority. (Doyle v. Lord, 64 N. Y. 432.) In the latter case it must' appear■ that mere damages are not an adequate remedy.

The.learned judge at Special Term, upon the question whether the plaintiffs have an adequate remedy at law, sayS: It sufficiently appears- that the busy season of plaintiffs is at hand • that they are in danger of losing trade if they are not permitted to take possession, and in my judgment, sufficient of a prima facie case "is presented showing that they would have no adequate' remedy at law.” The facts, however, upon which this is made evident are not stated in the complaint, but appear in affidavits which were used upon the motion. I agree, therefore, with Mr. Justice Clabke, that as the right to injunctive relief in this instance depends upon the nature of the ‘action, and is thus controlled by section 603 of the Code of Civil Procedure, the three cases which he cites (Heine v. Rohner, 29 App. Div. 242; McHenry v. Jewett, 90 N. Y. 58; Brass v. Rathbone, 153 id. 435) are authorities for the proposition that the facts must be alleged in the complaint showing that the plaintiffs are entitled to injunctive relief, and that such right cannot be established by affidavits.

I think, therefore, that the order must be reversed, but without prejudice to a renewal of the application should the plaintiffs be successful, in obtaining leave to serve an amended complaint with suitable allegations which support their right to injunctive relief. .

Laughlin and Houghton, JJ., concurred.

Order reversed, with’ ten dollars costs and disbursements, and motion.denied, with ten dollars costs, without prejudice to a renewal as stated in opinion. Order filed.

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