Orlowsky v. East House Enterprises, Inc.

Appellate Terms of the Supreme Court of New York

Feb 16, 1961

Versions:32 Misc. 2d 664

228 N.Y.S.2d 19

1961 N.Y. Misc. LEXIS 3377

Per Curiam.

The lease here provides that rent is payable “ without any set-off or deduction whatsoever ”. Having thus agreed, the tenant could not assert and have the court pass upon its counterclaim in the summary proceeding (Amazon Management. Corp. v. Paff, 166 Misc. 438; Linker v. Herard, 13 Misc 2d 445).

The final order should be modified by reversing the judgment therein in favor of tenant on its counterclaim, and dismissing said counterclaim without prejudice to any other action thereon as tenant may be advised, and as modified affirmed, thereby permitting a recovery to landlord of $315, with $25 costs.

Concur — Hecht, J. P., Aurelio and Tilzer, JJ.

Final order modified, etc.