
    Benjamin F. Romaine et al., Appellants, v. Thomas F. Brewster, Respondent.
    (New York Common Pleas
    General Term,
    November, 1894.)
    A final judgment upon a decision overruling a demurrer is unauthorized and erroneous.
    In the absence of allegations that the lease contained a covenant of quiet enjoyment or of a breach thereof, a claim, for damages resulting from an eviction alleged to have been caused by the creation of a nuisance by the neglect of the landlord to keep the portion of the premises reserved by him in a proper state of repair, is not a proper subject of counterclaim in an action for rent under the lease.
    Appeal from a judgment of the General Term of the City Court of Bew York, which reversed a judgment sustaining a demurrer to the defendant’s counterclaim.
    Action upon a lease in writing and under seal to recover two monthly installments of rent. Besides asserting a counterclaim for damages accruing therefrom, the defendant pleaded eviction.
    
      JECerma/n W. Schmitz, for appellants.
    
      La/wrencc Godhin, for respondent.
   Bisohoff, J.

To an action upon his covenant to pay rent under a lease of an apartment in the plaintiffs’ apartment house, the defendant, besides pleading his eviction from and abandonment of the demised premises before the accrument of the installments of rent sued for, interposed a counterclaim for damages alleged to have resulted from the eviction. The plaintiffs demurred to the counterclaim on the ground that it did not arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiffs’ claim, and was not connected with the subject of the action. Oode Civ. Proe. § 501, subd. 1. At Special Term of the court below the demurrer was sustained, but at General Term the defendant had judgment for reversal, with costs, against the plaintiffs, and from that judgment the plaintiffs have appealed to this court. The judgment under review awards costs against the plaintiffs, payment whereof may be enforced by execution. It is final in form, and so appealable to us. A final judgment, however, upon a decision overruling a demurrer is unauthorized and erroneous. It must, therefore, be reversed, and the parties should cause the proper judgment to be entered in the court below. The only proper judgment is an interlocutory judgment, and from it no appeal will lie to this court. Biershenk v. Stokes, 18 N. Y. Supp. 854.

It may, perhaps, be to the advantage of the litigants here to say that the decision at General Term of the court below was error. The allegations of the answer respecting the counterclaim nowhere make mention of a covenant of quiet enjoyment, expressed or implied, as having been entered into by the plaintiffs, nor is any breach of any such covenant assigned as the foundation of the counterclaim. The answer admits the execution and delivery of the lease mentioned in and annexed to the complaint, and then, in substance, alleges that the plaintiffs, owing to their neglect to keep the part of the building of which they retained possession and control in a proper condition and state of repair, had caused a nuisance to he created and maintained on the premises whereby the apartment leased to the defendant became untenantable, and he was compelled to remove therefrom. Bradley v. De Goicouria, 12 Daly, 393 ; Tallman v. Murphy, 120 N. Y. 351 ; Tallman v. Earle, 3 Misc. Rep. 76 ; Duff v. Hart, 40 N. Y. St. Repr. 676. In the absence, therefore, of allegations essential to a cause of action ex contractu, it must be assumed that the cause of action intended to be asserted is ex delicto, the allegations being sufficient for that purpose.

Treating the counterclaim as ex delicto, it cannot be said to have arisen out of the contract or transaction set forth in the complaint, i. e., the lease, nor is it connected with the subject of the action, the rent reserved. Edgerton v. Page, 20 N. Y. 281, 285.

The judgment should be reversed, with costs.

Bookstaveb and Pbyob, JJ., concur.

Judgment reversed, with costs.  