
    Edward Burrell, Respondent, v. Do Sim et al., Appellants.
    (New York Common Pleas
    Additional General Term,
    January, 1895.)
    A claim for damages by reason of a conversion of the tenant’s chattels by the landlord cannot be sethip as a counterclaim in summary proceedings for nonpayment of rent.
    An allegation in the petition of the fact of possession by the defendant is sufficient to support a judgment of dispossession where the defendant refuses to proceed and withdraws from the proceeding, and it is^admitted that his property is still on the premises.
    Appeal from a final order in summary proceedings in favor of the landlord,'made by the justice of the District Court in the city of Rew York for the second .judicial district.
    
      George W. Stephens, for respondent.
    
      George W. Glaze, for appellants.
   Bischoff, J.

In a summary proceeding for the possession of leased premises the tenants, defendants, set up a counterclaim for damages sustained by reason of the plaintiff’s having unlawfully retained and withheld certain furniture and food stuffs belonging to the defendants and found upon the demised premises, the latter property being claimed to have been rendered valueless by reason of its perishable character.

This counterclaim was dismissed at the trial upon the plaintiff’s motion, and, although the appellants’ counsel took no exception to the ruling, it is urged that error is in some manner presented. Waiving the point that an exception should have been taken, the ruling is found to be clearly right.

Section 2244 of the Code of Civil Procedure (amended by Laws of 1893, chap. 705) permits the interposition of a counterclaim in summary proceedings, but it is thereby provided that “ such counterclaim may be set up and established in like manner as though the claim for rent in such proceeding was the subject of an action.” It is not to be gathered from this section that a counterclaim of every conceivable variety may be set up in these proceedings, in view of the latter provision, which clearly appears to be explanatory of its scope. The counterclaim here interposed was set forth strictly as a claim for damages by reason of a conversion of the chattels, and, viewing the proceeding as an action of which the claim for rent was the subject,0 such counterclaim was-properly dismissed. McKensie v. Farrell, 4 Bosw. 192-202 ; Drake v. Cockroft, 4 E. D. Smith, 34 ; Romaine v. Brewster 10 Misc. Rep. 120 ; 62 N. Y. St. Repr. 517 ; Finkelmeier v. Bates, 48 N. Y. Super. Ct. 433, 441 ; Mayor v. S. S. Co., 12 Abb. Pr. 300, 303.

It is further claimed thgt a judgment of dispossession for the plaintiff was improperly rendered upon the defendants* refusal to proceed, the appellants’ contention being that possession by them of the premises had not been shown. In answer, it suffices to say that the verified petition filed by the landlord alleged the fact of possession by the tenants, as required by the statute (Code, §§ 2231, 2235), and by reason, of the defendants’ withdrawal from the proceedings, and their refusal to proceed upon the trial of what issues might be raised by the answer, this allegation stood as sufficient to support the judgment. Moreover, it was admitted at the trial that the effects of the tenants were still upon the premises at that time.

The final order is affirmed, with costs.

Bookstaveb, J., concurs.

Final order affirmed, with costs.  