51 N.Y.S. 124 | N.Y. App. Div. | 1898
■ This is an action by a lessor against a lessee to recover $416.66, being the stipulated rent for the month of February, 1897, alleged to be due and owing from the defendant to the plaintiff, under a written lease of real property.
The answer, after denying that the defendant covenanted to pay the rent at the times stated in the complaint, and also denying that the plaintiff has performed all the conditions of the lease on his part, sets up a counterclaim alleging that, by the terms of the lease, the plaintiff was to furnish the defendant with an electric current sufficient to run a three-horse power electric motor; that the plaintiff failed to supply said current; that thereupon the defendant, at
No question is raised as to- the legal sufficiency of this counterclaim.
The demurrer is interposed to the second separate and distinct defense set up in the answer. That defense contains no denials whatever. It restates in substance the foregoing averments of the counterclaim in reference to the plaintiff’s agreement to furnish the defendant with an electric current, and his breach of that agree-. merit, and contains the following additional allegation:
“ Eighth. That prior to the commencement of this action the defendant duly tendered to the plaintiff herein the sum of $403.29, being the sum of $416.66 for rent for the month of February, 1897, less the aforesaid sum of $13.38, the amount theretofore paid to the Edison Electric Illuminating Company, of Hew York, for electric current furnished as aforesaid, which amount the plaintiff refused to accept, and which said sum of $403.29 the defendant has deposited with the clerk of this court to the credit of the above-entitled action.”
It is to ‘be noted that the matters contained in the defense, to which the demurrer applies, are pleaded solely as a defense, and are not denominated a counterclaim in that part of the answer. So far as the defendant apparently desires to rely upon them as a counterclaim, he has set them out in the earlier portion of his pleading, where they remain unquestioned by the demurrer. We have, therefore, to deal with this second part of the answer considered only as a defense in contradistinction to a counterclaim.
Thus considered, I think it is insufficient in law.
Since the decision in the case of The May.or of New York v. Mabie (13 N. Y. 151) the rule has been established in this State that a tenant sued for rent can recoup such damages as he may have suffered by reason of a breach of the landlord’s covenant to repair the premises. (Kelsey v. Ward, 38 N. Y. 83; Thomson-Houston
There is nothing in the defense to which the demurrer is directed showing the existence of any special facts calling for the application of equitable, as distinguished from strictly legal principles, in the case at bar, and under such circumstances, as was said by Mr. Justice Bradley in Armstrong v. McKelvey (39 Hun, 213,219; affd., 104 H. Y. 179) equity follows the law on the subject of set off.” (See 2 Story Eq,. Juris. 1434.)
Finally, we have to consider the sufficiency of the second separate defense as a plea of tender of payment. In this view, I do not see how it can be maintained. In the first place, this defense, by failing to deny any of the allegations of the complaint, admits $416.66 to be due from the defendant to the plaintiff on account of the rent. The answer sets up a tender and payment into court of only $403.29. The difference of $13.38 represents the amount which the defendant has paid for the electric current which the plaintiff agreed to furnish. That the defendant may rightfully counterclaim this sum against the plaintiff has already been shown, but if he wishes to oppose to the plaintiff’s cause , of action not only such a counterclaim, but a separate and distinct defense of tender of payment, he ■ must allege a tender, and a tender in money, of the whole amount of rent which he admits to be due. It will not suffice for a tenant to "plead a-'tender before action of the rent subsequently sued for less the amount of a debt which he alleges is due to him from his landlord. To permit such a course would he to treat an offer to satisfy a cause of action as equivalent in law to an offer to pay money in fulfillment of a contract calling for the payment of - money.. There must be a tender of the whole rent to make it effective as a defense. In Dixon v. Clark (5 Man., Gr. & S. 365, 377; 57 Eng. C. L. 365) the Court of Common Pleas considered the general question whether a tender of part of an entire debt was good, and the judges expressed the opinion on principle that such a tender was bad: In Searles v. Sad-grave (5 El. & Bl. 639), -where the plaintiff’s claim amounted to
It is to be' observed that the tender alleged in the defense, which is the subject of the demurrer in the present case, is a-tender before the commencement of the action and, hence, does not fall within the provisions of the Code relating to tender after suit. (Code Civ. Proc. §§ 731-734.) '
To sum up what, has been said, I think that this defense is insufficient in whatever light it may be viewed. So far as it seeks to. recoup the damages alleged to have been sustained by the plaintiff’s breach of covenant, the matter can only properly be pleaded as a counterclaim—as indeed it has been pleaded in the first part of the answer. So far as the defense is intended as a plea of tender it is unavailing, because, before action brought, a tenant cannot deduct from the rent due under his lease a sum which he claims as
For these reasons, I advise the reversal of this interlocutory judgment:
All concurred.
Interlocutory judgment reversed and judgment directed for plaintiff on demurrer, without costs.