
    240 West 37th Street Co., Inc., Respondent, v. Max C. Lippman, Appellant.
    First Department,
    June 21,1934.
    
      Emanuel J. Freiberg of counsel [William W. Conrad, attorney], for the appellant.
    
      Allen M. Taylor of counsel [David Lazarus with him on the brief; Alexander A. Mayper, attorney], for the respondent.
   Per Curiam.

We are of opinion that in summary proceedings a tenant may interpose a counterclaim for breach of the landlord’s duty to repair. While agreeing with the Appellate Term that the counterclaim here pleaded was insufficient, we are of opinion that the judgment in favor of the landlord should be reversed and a new trial ordered upon which the tenant may move to amend. The dismissal at the opening of the case was solely upon the ground that it had not been properly interposed. This was error. Had a motion been directed to its sufficiency, the tenant could have moved to amend.

The determination of the Appellate Term and the judgment of the Municipal Court should be reversed, and a new trial ordered, with costs to the appellant in all courts to abide the event.

Present — Finch, P. J., Merrell, Martin, O’Malley and Untermyer, JJ.

Determination appealed from and judgment of the Municipal Court reversed and a new trial ordered, with costs to the appellant in all courts to abide the event.  