39 Misc. 784 | N.Y. App. Term. | 1902
These are appeals from final orders- made in the Municipal Court of the city of New York, awarding possession of the premises to the landlord, after the default of the tenant in the payment of rent.
The actions were brought to recover possession of the premises demised for failure of the tenant to pay two separate instalments of rent due under the terms of the lease. Verified answers were interposed by the tenant, which did not deny any of the allegations of the petitions, but which set up the breach by the landlord of
Judgment was granted upon the pleadings in favor of the landlord and the tenant has appealed. The question presented is whether, conceding the statements in the answer to be true, was there anything pleaded which, if established, would defeat the petition. By section 2244 of the Code of Civil Procedure it is provided that in summary proceedings, a verified answer may be interposed “ setting forth a statement of any new matter constituting a legal or equitable defense, or counterclaim.” And there was added to this by chapter 705 of the Laws of 1893 the following provisions: “ 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.” The question, then, first to be determined is, what might be available as defense to an action for rent.
In connection with this, the language of Chief Judge Andrews, in the case of Thomson-Houston Electric Co. v. Durant L. & Impt. Co., 144 N. Y. 34, 43, where the covenants of a lease were under consideration, may be quoted: “ The covenant on the part of the lessee to pay the rent and charges specified in the lease, and on the part of the lessor to deliver the demised premises to the lessee at the commencement of the lease in ‘a sound and substantial condition, and in a state of good repair/ and also to make, as soon as practicable, all changes and alterations ‘ required at any time during the term by any present or future law, ordinance or authority whatsoever/ were distinct and independent covenants. The plaintiff, having entered upon the demised premises under the lease, and continued in possession, was bound to pay the rent reserved, and he could not defend on the ground that the covenant on the part of the lessor to put the premises in repair, or to make changes or alterations required by municipal or other legal authority, had
It may be stated, then, that a breach of the covenants in the lease by the landlord not being an excuse for the failure of the tenant to pay rent affords no defense in an action to recover possession of the demised premises, but if accompanied by damages flowing from the breach, these damages are a proper subject of counterclaim.
■ A counterclaim may be interposed in a summary proceeding to recover possession of demised premises, Sage v. Crosby, 33 Misc. Rep. 117, but no affirmative money judgment can be awarded to either party. Wulff v. Cilento, 28 Misc. Rep. 551; Gay v. Richmann M. Co., 53 App. Div. 507.
The tenant contends that because no affirmative money judgment can be awarded, therefore, it is improper to set up the damages by way of counterclaim, but that it is proper as a defense, but this inference cannot properly be indulged in. The damages should be offset by way of counterclaim to the extent of the claim of the landlord, and if the damages are in excess of such claim the excess may still be recovered in another action. Gordon v. Van Cott, 38 App. Div. 564.
It follows, therefore, that while the subject-matter of the answers was a proper consideration as a counterclaim to this action, still not being set up as such, the action of the Municipal Court in granting the final orders was proper, and the orders should be affirmed, with costs.
Freedman, P. J., and MacLean, J., concur.
■ Final orders affirmed, with costs.