23 Abb. N. Cas. 267 | City of New York Municipal Court | 1889
The motion to amend the demurrer was returnable April 1st, inst. The papers thereon, together with the pleadings upon the demurrer, were submitted to me on the 8th inst. The motion to amend was referred to me by the chief justice, on the ground that I had the question of the demurrer under advisement. This was not strictly correct. Ho papers whatever had been submitted to me, nor were they handed in until the 8th inst., as stated. I therefore consider the motion to amend and the argument of
Plaintiff demurs to the counter-claim “on the ground that the counter-claim does not state facts sufficient to constitute a cause of action, and that the-counter-claim is not of the character specified in section 501 of the Code of Civil Procedure.” The counter-claim is based either on a breach of the covenant of quiet enjoyment, or else it is for malicious prosecution, and in neither case will it constitute a legal defense to the plaintiff’s action. In order to maintain an action for breach of the covenant for quiet enjoyment, an actual eviction, accompanied by a complete ouster from the premises, must be alleged and proved. Edgerton v. Page, 20 N. Y. 281; Whitbeck v. Cook, 15-Johns. 483; Boreel v. Lawton, 90 N. Y. 297. If the landlord’s acts be of such a character as to justify the tenant in leaving and abandoning the premises, the latter has been evicted; but a tenant cannot remain in possession, and claim an eviction. See cases cited. No eviction is alleged, hence none-can be proven, and, if the counter-claim be intended to be claimed fora breach of the covenant referred to, it must fail. If the connter-claim is for malicious prosecution, it is fatally defective in failing to allege malice, the essential feature in that class of actions. Want of probable cause is not sufficient. Malice-must be alleged and proven. Besson v. Southard,, 10 N. Y. 236. Besides,, such a counter-claim is open to the further objection that it sounds in tort, and cannot be set up as against an action upon contract. Nor does the counterclaim arise out of the plaintiff’s cause of action. Surely a malicious prosecution lias nothing to-do with the lease sued upon. It is in no way connected with the subject of the action. The acts complained of must amount to a breach of the landlord’s contract of letting, to be the subject of a counterclaim arising out of the same transaction. Edgerton v. Page, supra; Walker v. Shoemaker, 4 Hun, 581; Mayor, etc., v. Steam-Ship Co., 12 Abb. Pr. 300.
The answer discloses no valid defense to plaintiff’s action for rent. There-must therefore be judgment in favor of the plaintiff upon the demurrer, with, costs.