103 Misc. 675 | N.Y. App. Term. | 1918
The plaintiff has recovered judgment upon a directed verdict for the sum of $177.63. The pleadings in the case were oral and on the back of the summons the following words were indorsed: “A statement of the nature and substance of the plaintiff’s cause of action is as follows: For rent of store, 168 East 110th Street for June, July and August, 1917.”
The record also shows that the answer is ‘‘ Counterclaim $465. Damage to property.”
At the trial both counsel opened to the jury and the plaintiff offered in evidence the lease. The plaintiff then moved: “ Upon the opening and upon the lease the plaintiff respectfully moves for judgment.” The trial judge thereupon directed a verdict for the landlord for the amount sued for, and dismissed the counterclaim. The record further shows that no request was made that the stenographer should take down the opening of the counsel and no direction by the court' to that effect. Consequently there is nothing in the
In the present case, the record is absolutely barren of any statement of facts or of claim by the defendants as to what they intend to prove in order to sustain their counterclaim. Consequently, there is nothing in the record to justify a dismissal of the counterclaim upon the opening of counsel.
The respondent, however, urges that we should consider the motion as if made upon the lea.se and the pleadings. The lease contains a clause which provides: “ that the landlord shall not be liable for any damage or injury by water, which may be sustained by the said tenant or other person, or for any other damage or injury resulting from the carelessness, negligence, or improper conduct on the part of any other tenant or agents, or employees, or by reason of the breakage, leaking or obstruction of the Croton water or soil pipes, or other leaking in or about the said building. ’ ’ Undoubtedly under all the authorities this clause in the lease would exempt the landlord from any liability resulting from leakage caused by the negligence of any agents or employees or from ordinary wear and tear, or from sudden action of the elements. If the defendants ’ counterclaim seeks a recovery for damages sustained in that manner then a trial of the counterclaim would be useless. The plaintiff, however, would be responsible for any affirmative act of negligence committed by herself. The counterclaim as pleaded is unquestionably defective in that it fails to state the nature and substance of the action, for the words “ damage to property ’ ’ are clearly insufficient to meet this requirement of the Municipal Court Code. If the plaintiff had, by appropriate motion, taken objection to the counterclaim as endorsed upon the summons,
It follows that the judgment must be reversed and a new trial ordered, with thirty dollars costs to appellants to abide the event.
Present: Lehman, Pendleton and Finch, JJ.
Judgment reversed and new trial ordered, with costs to appellants to abide event.