
    RHINELANDER v. MARTIN.
    
      City Court of N. Y., Special Term;
    
    April, 1889.
    1. Pleading; demurrer to counterclaim.] A counterclaim to an action for rent which alleged that the plaintiff unsuccessfully and without probable cause brought an action to forfeit the lease, and that by such suit defendant was injured in his business,—is demurrable for insufficiency, because the omission to allege an eviction renders it insufficient as a cause of action for breach of covenant of quiet enjoyment; and the omission to allege malice renders it insufficient as a cause of action for malicious prosecution.
    2. Same.] Such a counterclaim is in tort, and not allowable in an action on contract; and it does not arise out of the transaction sued upon. 
    
    Motion to amend demurrer; and demurrer to counterclaim.
    William Rhinelander sued George S. Martin for rent due under a written lease and the defendant answered admitting the rent due and setting up a counterclaim as follows :
    “ That by the terms and conditions of the lease referred to in the complaint herein defendant was assured and promised quiet and peaceable enjoyment of the premises; that the plaintiff, without probable cause, caused to be brought an action in the superior court of the city of Hew York praying for the forfeiture of the said lease, and that he based such action upon certain violations of covenants contained in said lease; that on or about March 1, 1888, plaintiff, by a notice in writing, elected to terminate said lease ; that the said plaintiff caused to be prosecuted the said action in said superior court to the end, without just cause, that a trial was had on December 5, 1888, and thereafter a judgment was duly rendered in favor of this defendant in said action.
    
      “ That by reason of the institution of said action and its unjust prosecution, the defendant, who at the time of the commencement thereof was carrying on a large livery and boarding-stable business in the said premises mentioned in the complaint herein and under said lease, lost many of his customers and boarders who withdrew their trade and patronage from him, lest their property should be disturbed summarily in the premises; and that by reason thereof, defendant suffered great loss, and was compelled to defend said action at great expense to his damage,” etc.
    The plaintiff demurred to the counterclaim on the ground that it did not state facts sufficient to constitute a cause of action, and subsequently moved for leave to amend the demurrer by adding that the counterclaim was not one of those specified in Code Civ. Pro. § 501.
    Both the motion to amend the demurrer, and the demurrer, now came on to be heard.
    
      Young & Ver Planck, for the motion and the demurrer.
    
      John F. McIntyre, opposed.
    
      
       That, in an action for rent, damages for conversion of fixtures may be counterclaimed, see Littman v. Coulter, p. 60 of this vol.
    
   Nehrbas, J.

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. No 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 the demurrer as presented to me at the same time for decision.

The motion to amend the demurrer will be granted, but in view of the fact that it was made so late, terms must, under the circumstances, be imposed. Twenty-five dollars will be awarded to the defendant upon the motion, to be offset to the costs on the demurrer in plaintiff’s favor, as will hereafter appear.

Now as to the demurrer as amended. The action is for rent under a written lease. The answer admits the rent but sets up as a counterclaim, that although the lease contained a covenant for quiet enjoyment, the pláintiff, without probable cause, brought a suit against the defendant in the superior court of this city for the forfeiture of the lease, based on certain violations of covenants contained in the lease ; that the suit was prosecuted without just cause, a trial had, and judgment duly rendered thereon in favor of the defendant. “ That by reason of the institution of said action and its unjust prosecution, the defendant, who at the time of the commencement thereof, was carrying on a large livery and boarding-stable business in the said premises ; . . lost many of his customers and boarders who withdrew their trade and patronage from him, lest their property should be disturbed summarily in the premises; and that by reason thereof defendant suffered great loss, and was compelled to defend said action at great expense, to his damage, $1,500.”

Plaintiff demurs to the counterclaim “ on the ground that the counterclaim does not state facts sufficient to constitute a cause of action ; and that the counterclaim is not of the character specified in section 501 of the Code of Civil Procedure.”

The counterclaim 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 Id. 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 counterclaim be intended to be claimed for a breach of the covenant referred to, it must fail.

If the counterclaim 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 counterclaim 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 has 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. Parker Vein S. S. 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.  