166 Misc. 438 | N.Y. App. Term. | 1938
Order unanimously reversed upon the law, with ten dollars costs to landlord, and motion to strike out the tenant’s counterclaim granted, with ten dollars costs.
This is an action for rent. The lease provided that “ in the event the Landlord commence any summary proceeding for non-payment of rent, the Tenant hereby agrees not to interpose any counterclaim of whatever nature or description in any such proceeding.” The tenant admitted his liability for rent but interposed a counterclaim for property damage in the sum of $100. The motion to strike out the counterclaim as being contrary to the express agreement of the lease was denied. The agreement does not offend public policy. The tenant is not deprived of his day in court and may still assert his claim in an independent action. At most, he has waived only a procedural right. This agreement is not unlike one to waive a jury trial in a summary proceeding, which has been held to be valid and not contrary to public policy. (Waterside Holding Corp. v. Lask, 233 App. Div. 456.) No opinion.
Present — Lewis, Smith and McCooey, Jr., JJ.