
    Browning, King & Company, a Corporation, Appellant, v. Frank W. Terwilliger, Respondent.
    First Department,
    May 12, 1911.
    Pleading — separate defense to two causes of action — partial defense not pleaded as such — insufficient partial defense to action for rent — allegations as to consideration for new agreement — conclusions of law — failure to set out accord and satisfaction — counterclaim not asking money damages — failure to show damage — contradictory allegations — separate defense to one of two causes of action for rent.
    A separate defense to one of two pauses of action must distinctly refer to the cause of action which it is intended to answer, as required by section 507 of the Code of Civil Procedure.
    A separate defense not pleaded as a partial defense,- nor stating to which of two causes of action it refers, will be deemed to be intended to be a complete defense to both of the causes of action.
    A separate defense is not a complete defense to two causes of action set forth in a complaint where it contains no allegations appropriate to defeat one of the causes, nor allegations appropriate to defeat a portion of the other cause.. .
    Where a complaint sets out two causes of action for rent' of different premises a separate defense not alleged to be a partial defensé to either of the cause's of action is insufficient as such, where it merely alleges that the plaintiff “forgave rent due” and agreed to accept rental of the premises described “ in said lease ” at a lesser rental than that alleged in the complaint, if it fail to show which of the leaseholds was covered by the alleged agreement, and the consideration which the plaintiff received for the new agreement and the relinquishment of accrued rent. The allegation that the new agreement abrogating the former lease was made and the rent forgiven “for a valuable consideration” is a mere conclusion of law.
    Such allegations do not establish an accord and satisfaction where there is no allegation that the substituted agreement to lease was ever followed by actual performance thereof.
    Where a cause of action is not based on a contract calling for the payment of money, but to perform a certain duty, and no damages are expressly alleged, the pleading, is demurrable.
    Thus, a defense by way of counterclaim to two causes of action for the rent of different premises is insufficient where it sets out a provision of “the lease set forth in the complaint,” without specifying which of the . two leases, by which the plaintiff was required to furnish steam heat for a Turkish bath maintained by the defendant, and alleges that the plaintiff failed to carry out the provision so that the business of the defendant was ruined, there being no allegation as to the damages sustained, hor prayer for relief by way of judgment for damages.
    
      A separate defense and counterclaim to an action for rent is defective where, although it alleges that the defendant was ousted by the Public Service Commission from the occupation of vaults under the sidewalk leased from the defendant, who had but a revocable license, it appears from other allegations that the defendant remained in possession of the vaults until dispossessed in summary proceedings for non-payment of rent, the validity of said proceedings not being contested.
    A defense stated to be a separate and distinct defense to the second of two causes of action for the rent of separate premises is sufficient where it alleges payment of rent demanded by the complaint and an ouster by the plaintiff during the period for which rent was paid.
    Appeal by the plaintiff, Browning, King & Company, a corporation, from an interlocutory judgment of the' Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of February, 1911, upon the decision of the court, rendered after a trial at the New'York Special Term, overruling the plaintiff’s demurrer to two defenses and a counterclaim set up in the defendant’s amended answer.
    
      Charles P. Northrop, for the appellant.-
    
      Abraham Feinstein, for the respondent.
   Dowling, J.:

. The complaint herein sets forth two causes of action: (1) For the sum of $4,466.71 due under a written lease of premises 1265-1267-1269 Broadway, borough of Manhattan, city of New York, dated April 3, 1908-, and covering the period until May 1,1924, at the annual rental of $11,000 payable bi-monthly, in addition to the sum of $800 annually for Croton water-supplied to said premises, payable monthly, • of which total the sum of $4,583.34 is for installments of rent due August 1, 1908, December 1, 1908, and February 1; 1910, credit being given for $850, deposited in court; and the remaining amount, $733.37 being due for Croton water charges for the months of April, 1909, to February, 1910, inclusive; .(2) for the sum of $355, due under a written lease of premises 1263 Broadway in the same borough, dated April 3, 1908, and covering the period until April 1, 1914, at the annual rental of $1,000, and $5 in addition for heat to be supplied thereto, payable bi-monthly; the installments of rent thereunder for January, March, April and. May, 1910, remaining unpaid. To this complaint defendant interposed an amended answer which, after a denial of the allegations contained in two paragraphs of the complaint, set up certain separate defenses to which plaintiff has demurred. • - ,

' The separate defense first pleaded, although it is called ■“ a separate and second defense to said action/’ is obviously intended as an answer to the first cause of action only, for it refers- solely to the claim for rent due for August,. 1908, December, 1908, and January, T909, amounting to $2,150, which is at the rate fixed by the lease set forth in the first cause of action.

This separate defense contains no denial of any allegation in the complaint. It is pleaded as a complete defense to the entire action. It is defective in form, for if intended as a defense to the first cause of action it does not comply with the requirements of the Code of Civil Procedure, as it fails to distinctly refer to. the cause of action which it is intended to answer (§ 507); and if intended as a partial defense, it does not so state, nor does it show to what particular cause of action it is deemed to be such (§ 508): ¡Not being pleaded as "a partial defense, it must be treated as a complete defense to the cause of action. (Mott v. De Nisco, 106 App. Div. 156.) It is not a complete defense to both causes of action because it contains no denials or affirmative allegations appropriate to defeat the second cause of action; nor to the first cause of action, because it contains, no details or affirmative allegations appropriate to defeat the recovery of the amount due for Croton water service or for rent for the month of January, 1910, both of which items are included in that cause of action. Even as a partial defense to the first cause of action the pleading is insufficient, for it purports to set up a new agreement made on January 15, 1909, for a valuable consideration, by which plaintiff “forgave” the amount of rent then due ($2,150), and agreed to accept rental for the premises described “in the lease aforementioned ” at the rate of $650 per month up to October 1, 1909, and $850 per month thereafter.. It is not alleged which premises were covered by the alleged agreement, nor in what lease they were described (there being two leases for separate parcels of property set forth in the complaint), nor what the consideration was which plaintiff received for the new agreement and the relinquishment of its claim for accrued rent. There is no claim that any release was given, nor any statement of what the consideration was which passed from defendant to plaintiff. The allegation that plaintiff made this new agreement abrogating the former written lease and forgave the rent due “ for a valuable consideration” is a mere conclusion of law, as. is any such allegation when applied to a non-negotiable instrument, unaccompanied by any statement of the facts showing consideration. (Fulton v. Varney, 117 App. Div. 575.) Nor is there any valid plea of accord and satisfaction, for there is no allegation that the alleged substituted agreement of leasing ever was followed by actual performance thereof. (McCreery v. Day, 119 N. Y. 1.)

The defense which is denominated£ £ a third defense, .and by way of counterclaim ” is defective and insufficient. By this it sought to plead a provision of “the lease set forth in the complaint” (not specifying which of the two therein set forth is meant) by which plaintiff was to furnish “all necessary steam and heat in sufficient quantities for the proper conduct of a Turkish bath business Conducted by this defendant;” that plaintiff failed to carry out this provision and that the business of defendant was ruined; but there is no allegation of any damages having' been sustained by defendant, nor any prayer for relief by way of a judgment for damages. "When a cause of action is not based on a contract calling for the payment of a sum of money, but to perform a certain duty, and no dam--, age is expressly alleged, the complaint is demurrable. (Gause v. Commonwealth Trust Co., 100 App. Div. 127.) It was further alleged that by the terms of the lease defendant was to have the use and occupation of the vaults under the sidewalk in front of the premises leased until April 3, 1921; that on November 15, 1909, defendant was ordered by the Public Service Commission and the Hudson and Manhattan Railroad Company to remove the fixtures and apparatus installed under the said vaults, and that by “ virtue of an illegal right in leasing for a term of síxtéen years the vaults under the sidewalk to which they had but a revocable license, this defendant was ousted from his enjoyment of the use and occupation of said premises;,” but there is no allegation that defendant ever lost or surrendered possession of the vaults in question or of any part of the premises; on the contrary, it appears from the alle- . gations of this very defense that defendant remained in possession of the premises until he was dispossessed February 20j. 1910, in summary proceedings based on his non-payment of rent. It thus appears that so far from being ousted by plaintiff’s failure to supply steam and heat and by its illegal act in leasing vaults to which it had only a revocable license, defend- ' ant. lost possession of the premises whereof he was a tenant by virtue of legal proceedings, .the validity of which he does not dispute.

The separate and distinct defense to the said [second] cause of action ” is not open to the objections hereinbefore enumerated, It alleges payment of the rent in question for the months of January and February, 1910, and an ouster from the demised preinises by the plaintiff on or about February 25,. 1910, which if duly established would, of course, be a complete defense to the second cause of action. The interlocutory judgment appealed from should, therefore, be modified, with costs to appellant, by providing that the demurrer to the “ separate and second defense ” and to the third defense and by way, of counterclaim ” be sustained, with leave to defendant to amend his answer as to such defense; and that as to the “separate and distinct.defense ” to the second cause of action the demurrer be overruled, with leave to plaintiff to reply thereto, within twenty days on payment of such costs.

Ingraham, P. J., McLaughlin, Scott and' Miller, JJ., concurred. .•

Judgment modified as directed in opinion, with costs to appellant. Settle order on notice.  