150 N.Y.S. 995 | N.Y. App. Div. | 1914
This is a summary proceeding to recover the possession "of premises in the borough of Manhattan, New York, consisting of the store, basement and subbasement of the building
The tenant ultimately interposed an amended answer denying that any rent was due or owing; and alleged as a first defense that in making the lease he was acting for the copartnership of Finn Brothers, and that the possession was that of said firm and that this was understood by the landlord. He then pleaded thirteen further separate defenses and counterclaims, the same facts being pleaded in each instance under the heading both as a defense and counterclaim.. The first counterclaim is designated the second defense doubtless owing to the fact that there was a first separate defense not pleaded as a counterclaim, and that form was followed throughout. The trial was before one of the judges of the Municipal Court and a jury. The court dismissed the eighth and twelfth counterclaims and the defenses claimed by virtue of the facts therein pleaded, but left all of the other defenses, excepting the first, which was without merit and appears to have been abandoned, and all other counterclaims to the jury. A general verdict was rendered in favor of the tenant, and from the final order entered thereon the landlord appealed to the Appellate Term, which, by a majority vote, reversed the order on the ground that the court erred in submitting the seventh and
The tenant pleaded for a sixth counterclaim and as a defense that on or about the 15th day of October, 1912, the landlord, in violation of the provisions of the lease — evidently referring to the implied covenant for quiet enjoyment — entered upon the premises and partially evicted the tenant therefrom by constructing a brick wall along the Broadway line of the premises and thereby cut off the tenant’s access to the vaults in Broadway, which were appurtenant to the premises demised, and cut off light, air and access, and has ever since neglected and refused to remove the wall and to permit the tenant to use the vaults. The material facts with respect thereto are that the city reclaimed for subway purposes the space in Broadway occupied by the vaults appurtenant to the premises leased to the tenant, and the contractor in constructing the subway, according to the plans and specifications duly adopted therefor, constructed the wall along the Broadway line
There was no wrongful eviction or breach of the implied covenant for quiet enjoyment, for while it may have been expected when the lease was made, and even that is doubtful on the facts of this case, that the municipal authorities would continue to permit the use of the vaults; yet when, in the exercise of a paramount title and superior right, that space was recalled for public use, the tenant could not remain in possession of the remaining part of the demised premises and refuse to pay rent, and at most his only right was to claim a reduction or apportionment of the rent and it would have been incumbent on him to have shown that his claim for such reduction of rent exceeded the amount of rent unpaid as shown by the petition (Duhain v. Mermod, Jaccard & King J. Co., 211 N. Y. 364; Gallup v. Albany R. Co., 65 id. 1. See, also, Hett v. Lange, 139 App. Div. 743) where the landlord himself evicts the tenant from part of the demised premises and the tenant remains in possession of that part from which he has not been evicted, the landlord’s right to rent is suspended until he restores possession to the tenant, but if the partial eviction be by a third party the tenant must pay proportionately the rent for the premises of which he remains in possession. (Dyett v. Pendleton, 8 Cow. 727; Liedtke v. Meyer, 137 App. Div. 74; Duhain v. Mermod, Jaccard & King J. Co., supra.)
The first counterclaim is for damages alleged to have been caused by the removal by the landlord of the front windows on the Broadway side and its failure to replace them for a period of. two months, whereby the goods, wares and merchandise of the tenant are alleged to have been damaged by grit, dust and dirt which were thereby permitted to enter the premises; and the second counterclaim is for damages alleged to have been caused by negligence of the landlord in removing iron roll curtains on the Broadway side of the building, whereby grit, dust and dirt were permitted to fall upon the tenant’s furniture. The removal of the windows and the removal of the iron cur-
It is claimed that these counterclaims were authorized by the amendment of section 2244 of the Code of Civil Procedure made by chapter 705 of the Laws of 1893, relating to the answer that may be interposed in a summary proceeding, which added thereto the following: “ or setting forth a statement of any new matter constituting a legal or equitable defense, or counterclaim. Such defense or counterclaim may be set up and established in like manner as though the claim for rent in such proceeding was the subject of an action.” It is manifest from the phraseology of this amendment that the Legislature did not intend to authorize in a summary proceeding any defense or counterclaim which, under the practice as regulated by other provisions of law, could not be pleaded as a defense or counterclaim in an action for rent. The rule of law on this point is not in harmony in all jurisdictions; but in this jurisdiction it was well settled before the enactment of that amendment that a counterclaim for damages caused either by negligence or by trespass was not proper in an action for rent, for the reason that such an action is on contract and the counterclaim would be for tort not arising out of the same transaction or a transaction connected with the same subject. (Edgerton v. Page, 20 N. Y. 281; Gallup v. Albany R. Co., supra; Boreel v. Lawton, 90 N. Y.
In the seventh counterclaim it is alleged that the landlord entered the premises to repair a large glass in the ceiling of the store, and while doing so negligently caused glass to fall on the defendant’s furniture. This is clearly a counterclaim for negligence and is not authorized, although if it were alleged that the landlord contracted with the tenant to make the repairs in a particular manner and failed so to do the counterclaim would be good. (Walker v. Shoemaker, supra.)
The ninth, tenth and- eleventh counterclaims are for damages caused to defendant’s furniture by the falling of plaster from the ceiling, alleged to have been due to the fact that the plaster was in a rotten, defective and unsafe condition when the premises were leased, and that this condition was not known to the tenant, but was known to the landlord, who failed and neglected to perform the duty devolving upon it of putting the ceiling in a proper state of repair either before or after the execution of the lease. The tenant was permitted to amend these three counterclaims to conform to the evidence by alleging in substance that the damages were caused by the negligence of the landlord or of a contractor employed by it to repair the ceiling. The tenant, therefore, has predicated those damages on negligence and the counterclaims were improper.
The third counterclaim is for damages alleged to have been caused by the negligence of the landlord in replacing with rough boards, vault lights — evidently meaning the glass covering over the vaults — which it is alleged it removed on the 1st of August, 1911, whereby the goods, wares and merchandise of
The fourth counterclaim is also pleaded as for damages for negligence; and the facts constituting the negligence were shown to be that on or about the 1st day of November, 1911, the landlord entered the premises and erected a brick wall in “the rear part thereof,” and removed a large part of the wall on the Franklin street side and “ negligently placed ” upon the basement and store floors large quantities of brick, mortar, lime and water, “and wrongfully damaged and changed the entrance to the Franklin street side” of the premises, and “ negligently performed the said work so that large quantities of lime, water, mortar, dust and dirt fell upon the goods, wares and merchandise of tenant during the period of construction;” and that the landlord neglected and refused to replace the wall on the Franklin street side until on or about the 1st day of May, 1912. This counterclaim must also be deemed one for negligence; and we might add that it also appears that the landlord was but carrying out a lawful binding order of the superintendent of buildings with respect to the erection of fire escapes and providing proper means of access thereto, and inclosing of the elevator shaft in fireproof material.
The fifth counterclaim is for loss and damage alleged to have been sustained by a partial eviction by the landlord on the 1st of November, 1911, by depriving the tenant of the use of approximately 300 square feet of space “in the rear part thereof,” and it is alleged that the landlord has ever since continued in possession of that part of the floor space. The facts pleaded would, doubtless, have authorized a counterclaim and evidence upon which the tenant would have been entitled to an apportionment of the rent owing to his being deprived of a substantial part of the entire space for which the rental was agreed upon. An apportionment of rent, of course, would
Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.
Determination of Appellate Term affirmed and final order directed in favor of petitioner under the stipulation, with costs. Order to be settled on notice.