114 N.Y.S. 4 | N.Y. App. Term. | 1909
The landlords seek to evict the tenants for nonpayment of rent. The court gave judgment for the tenants. The landlords appeal. The tenants admit the making of the lease and^ the nonpayment of rent, but claim that they were induced to enter into the lease by reason of the false and fraudulent representations of the landlords with regard to the amount of rent paid by the undertenants, and that they therefore have and do rescind the lease," and that they have deposited, as security for their compliance with the lease, the sum of $1,075 with the landlords, which, to the extent of $500, they counterclaim and offset against the landlords’ claim. The whole theory of the defense, as shown by the answer, is that defendants rescinded the lease on account of plaintiffs’ fraudulent representations. If so, it was defendants’ duty to restore the premises to plaintiffs, by. doing which they in no wise would have waived their claim for the deposit. We cannot see under what theory they can rescind the lease and yet keep possession of the premises.
The final order in the tenants’ favor must be reversed, and a new trial ordered, with costs to appellants to abide the event.