
    Millie B. Pakas, Respondent, v. Jacob Shinberg et al., Appellants.
    (Supreme Court, Appellate Term,
    January, 1906.)
    ¡Landlord and tenant—Rent—Amount—Particular provision interpreted.
    A provision in a lease that the sum of $150, allowed from the' yearly rent for repairs, lighting the halls, and keeping the halls and stairs clean at all times, which the tenant agrees to do, shall be deducted in equal monthly parts from the rent when due, has the effect of reducing the rent each month by one-twelfth of $150, whether the tenant actually does or does not light and clean the halls and stairs; and, in case the tenant fails to' live up to his agreement, the landlord’s remedy is an action for damages.
    Beauchabd, J., dissents.
    Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court- of the city •of ¡New York, eleventh district, borough of Manhattan.
    Joseph I. Erenstoft, for appellants.
    Beeves. Todd & Swain (Herbert Beeves, of counsel), for respondent.
   Scott, J.

I am of opinion that the plaintiff can recover in this action no more than the sum which was tendered by ■defendants and paid into court. The lease, in the first place, provided for a yearly rental of $2,500 per annum, payable monthly. In a later clause, it was agreed that the owner should allow the tenant the sum of $150 per year from, the afore-mentioned rent for repairs, lighting the halls and keeping the halls and stairs cleaned at all times which the tenant hereby agrees to do.” It is further provided : “ said sum to be deducted in equal monthly parts ■from the rent when due.” This provision had the effect of reducing the amount to be paid each month by one-twelfth •of $150, for it was to be allowed from, the rent and to be deducted therefrom when due. As the clause was worded, the amount allowed to the tenant was not to be treated as a •claim against the landlord independent of the rent, but as a monthly reduction of the amount to be paid. The deduction was not made to depend upon whether or not the tenant •did actually light and clean the halls and stairs, but- was positively agreed upon, in consideration of which the tenant agreed to do certain things. If, as the plaintiff claims, the tenant failed to live up to his agreement in these particulars the landlord’s remedy was to sue for damages.

The judgment should be reduced to the sum of $391.66, less the defendants’ costs in the court below, as provided for in section 148 of the Municipal Court Act; and, as so modi:fied, should be affirmed, with costs to the appellants.

Dowling, J., concurs.

Blanchard, J. (dissenting).

Action is brought by the "lessor’s assignee against the lessee for two months’ rent, •computed pro rata, upon a lease providing for the payment -of rent at $2,500' per annum, payable monthly. It was provided in the lease that “the owner shall allow the tenant •the sum of one hundred and fifty dollars per year from the aforesaid mentioned rent for repairs, lighting the halls and keeping the hall and stairs clean at all times, which the •¡Tenant hereby agrees to do, such sum to be deducted in equal monthly parts from the rent when due.” From a judgment in favor of the plaintiff the defendants appeal.

The clause under discussion, inserted after the usual covenants of the lessee regarding repairs and care of the premises, was intended to liquidate the cost of said services and to impose the burden thereof upon the landlord and to specify the time of payment. The provision that an equal monthly part of said sum should be deducted from the rent was not intended to alter the amount of the monthly rent, but merely to direct a recoupment of a certain sum against the monthly rent. It seems clear that, if the lessee had desired to plead this provision, he should have pleaded it as a counterclaim and not as a defense. Thomson-Houston Electric Co. v. Durant L. I. Co., 144 N. Y. 34, 44; Ely v. Spiero, 28 App. Div. 485. It results, therefore, that the plaintiff properly brought action for the undiminished amount of rent, and that, upon the evidence that no consideration had been given for which the landlord was bound by the lease to reimburse the defendant, the trial court rightly gave judgment for the plaintiff.

The judgment should be affirmed, with costs.

Judgment reduced to $391.66, less defendants’ costs in the court below, and as so modified affirmed, with costs to appellants.  