76 A.D. 371 | N.Y. App. Div. | 1902
This is an appeal by the tenant from a final order awarding to the landlord the possession of demised premises, entered in suhpmary proceedings instituted for non-payment of rent. The answer, in addition to a denial of indebtedness for rent, alleged as a separate defense and by way of counterclaim that the building occupied by the tenant on the demised premises as a hotel had become uninhabitable for want of outside repair; that “ under an implied covenant the landlord was bound to do and perform all necessary outside repairs; ” that the tenant had demanded compliance upon the landlord’s part with this “implied covenant,” and had been refused, whereupon the tenant was obliged to, and did, make the required repairs at an expense which represented the amount of the counterclaim.
The court ruled that no counterclaim could be interposed by the tenant in summary proceedings, and all evidence offered in support of the counterclaim was accordingly excluded. The learned counsel for the respondent concedes that this was error (Code CivProc. § 2244), but asserts that the counterclaim as set up in the answer is invalid on its face, and that the error, therefore, does not require a reversal of the final order. The contention appears to be
It follows that notwithstanding .the erroneous view of the law which was adopted by -the trial court, the appellant is not aggrieved inasmuch as the facts asserted in the answer now under consideration do not constitute a counterclaim.
The final order should be affirmed.
All concurred.
Judgment of the Municipal Court affirmed, with costs.