
    Joseph Schattman, Respondent, v. The Maze Realty Company, Appellant.
    First Department,
    May 3, 1912.
    Pleading — action against landlord to recover sum deposited' as security for rent, etc.— answer — breach of covenant by tenant need not be' set out as counterclaim.
    In an action by a tenant against his landlord to recover a sum deposited as security for rent and for the faithful performance of the covenants of the lease, to be returned at the expiration thereof if the covenants have been complied with, the' landlord as a defense may set up a breach of covenant by the tenant whereby he was damaged in a certain sum by reason of the fact that the building was rendered insecure, dangerous, etc. The landlord is not required to plead the breach of covenant by way of setoff or counterclaim.
    It is not necessary for a defendant to reallege facts stated in a complaint; hence, the defendant in said action need not reallege all the facts upon which his right to retain the deposit depended if they appear in the complaint.
    Appeal by the defendant, The Maze Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of November, 1911, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.
    
      Charles E. Travis, for the appellant.
    
      Jacob Schattman, for the respondent.
   Miller, J.:

On the 14th of September, 1909, the defendant and one Moses Harlam entered into an agreement whereby the former as landlord leased to the latter as tenant certain premises for the term of ten years. Pursuant to certain provisions of the lease and subsequent modifications thereof, the tenant deposited with the landlord the sum of $2,000 to be held as security for the rent and the faithful performance of the covenants of the lease, which, at the termination of the lease, was to be returned to the tenant provided he had complied “with all the covenants and conditions of said lease.” The lease contained a provision that it might he assigned to a corporation if one should be formed for the purpose of taking over and continuing the business of the lessee. Pursuant thereto, the Sagamore Garage Company, a corporation, was organized, and with the consent of the landlord the lease and all the right, title and interest of the lessee in and to the said sum of $2,000 was assigned to it. In March, 1911, the said corporation was dispossessed for non-payment of rent. This suit was brought by its 'assignee, and the recovery was for said sum of $2,000, less the sum of $583.33, rent for March, 1911, and $284 for water. rent, with interest. The lease provided that the landlord should alter or reconstruct the premises so as to render them suitable for use as an automobile garage in accordance with plans mutually agreed upon; .that the tenant should make necessary repairs and should have the right to make certain alterations, “provided that said repairs, alterations and instalments be made without injury to the structure of the building. ” As a defense, the defendant alleged that the plaintiff’s assignor failed and neglected to comply with the terms, conditions and covenants of the lease in that it caused certain structural changes and alterations, described, to be made, without the knowledge or consent of the defendant, which rendered the building insecure and dangerous, and that the cost of making the necessary alterations, repairs and improvements, thus necessitated, was the sum of $1,815.. That defense was stricken out, and a verdict was directed for the plaintiff for the amount claimed.

It is urged in support of the ruling of the learned trial court that the matters pleaded in defense should have been averred by way of setoff or counterclaim within the rule under our present system of pleading that a crossclaim or demand must he set up as a counterclaim. . (Deeves & Son v. Manhattan Life Ins. Co., 195 N. Y. 324.) But that rule does not apply where the matter relied upon is strictly a defense in whole or in part to the plaintiff’s cause of action. The defendant pleaded a breach of the covenant to secure which the deposit was made. He did not rely upon a cross demand arising upon some collateral or independent matter. The money was to he returned only in the event that the terms, covenants and conditions of the lease were complied with. A breach, therefore, of such covenants constituted a defense to the extent of the damages sustained by the defendant thereby. (Scott v. Montells, 109 N. Y. 1.)

It is also asserted that the defense is insufficient for not being complete within itself, by which is meant, if I understand the argument, that the defense should state all of the facts upon which the right of the defendant to retain the deposit depended, e. g., the terms of the lease, its assignment to the Sagamore Garage Company, the latter’s entry into possession thereunder, and the like. But it was not necessary to reallege the facts stated in the complaint. The defense is pleaded to those facts, and the rule is familiar that they are to be taken as admitted in determining the sufficiency of the defense.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Latjghlin, Scott and Dowling, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  