
    In the Matter of the Application of Josephine Kopczynski, Respondent, for the Removal of Albert Kusper, Appellant, from Certain Premises in the City of Elmira.
    Third Department,
    July 8, 1913.
    Landlord and tenant — summary proceedings — answer not claiming eviction —pleadings.in City Court of Elmira.
    The rules applying to pleadings in Justice’s Court apply to the City Court of Elmira and a pleading is not required to be in any particular form but must be so expressed as to enable a person of common understanding to know what is intended.
    In summary proceedings to remove a tenant for non-payment of rent, the defendant alleged that under the lease the plaintiff was obliged to furnish water but that the supply was cut off by the city by reason of the fact that the plaintiff did not pay the water bills whereby the defendant was injured in the use and enjoyment of the premises, etc. The defendant had paid the amount of rent into court, less damages claimed by reason of the wrongful act of the plaintiff in depriving him of water, together with costs. Held, that the answer did not claim an eviction, but merely a deduction from the rent on account of damages caused by the plaintiff and that a judgment for the defendant should be affirmed.
    Smith, P. J., dissented, with opinion.
    Appeal by the tenant, Albert Kusper, from a judgment of the County Court of Chemung county in favor of the landlord, entered in the office of the clerk of said county on the 9th day of July, 1912, reversing an order and judgment of the City Court of Elmira in favor of the plaintiff, and also an appeal from the order of said County Court upon which said judgment was entered.
    
      Michael Danaher, for the appellant.
    
      Harry H. Hays, for the respondent.
   Kellogg, J.:

The plaintiff instituted summary proceedings to remove the defendant from her premises as a tenant for non-payment of rent. The lease was made in the name of her husband as the lessor, for two years from March 15, 1911, at a monthly rental of eighteen dollars in advance. The defendant occupied the premises as a butcher shop. Water was supplied to the shop through the same meter that supplied the tenants on the second floor and the tenant in another building belonging to the plaintiff. City water was furnished to the defendant without additional cost until February 20, 1912, when the supply was cut off by reason of plaintiff’s not paying the bill. Thereupon the defendant refused to pay the rent due March fifteenth. All previous bills had been paid by plaintiff.

The defendant in his answer denied all the allegations in the petition, except the ownership of the plaintiff, and then set up the facts above stated and alleged that the defendant has been deprived of the full use, enjoyment and possession of the premises mentioned in the petition by reason thereof. He also alleged damages of fifty dollars because" plaintiff’s tenants on the upper floor had allowed water to leak down into his premises.

The defendant paid into court as a tender nine dollars and thirty-nine cents for rent and six dollars and thirty-five cents, the costs to date. The plaintiff claimed that it was agreed before the lease was signed that she should pay three dollars of the water rates and the defendant the rest. The defendant denied this. The justice dismissed the proceedings, with costs, thereby finding all the disputed facts in favor of the defendant. The County Court reversed the judgment on the ground that there had been no eviction, that the defendant had alleged no damages in the answer and no counterclaim and, therefore, was in default for the entire rent. The court in its opinion finds that the defendant was right on the questions of fact.

The leased premises being supplied with water through a common meter, and the plaintiff having paid the water rates without question for a part of the term, it is evident that the understanding of the parties was that the plaintiff was to pay the water rates. The City Court and the County Court properly so found.

The judgment in favor of the defendant was reversed for a defect in the pleadings in that the answer does not in form set up a counterclaim and does not allege damages by the wrongful act of the plaintiff in not' paying the water rates. Such determination, I think, overlooked the provision of section 2940 of the Code of Civil Procedure, which provides that in Justice’s Court A pleading is not required to be in any particular form, but it must he so expressed as to enable a person of common understanding to know what is intended.”

The rules obtaining as to the pleadings in Justices’ Courts apply to the City Court of Elmira. (Laws of 1906, chap. 477, § 113.)

It is evident that the answer did not intend to set up an eviction because the proceeding was brought upon the theory that the defendant was in possession and he was seeking to retain that possession. The allegations as to the terms of the contract, the conduct of the parties, the shutting off of the water, and that the defendant had been deprived of the use and enjoyment and possession of the premises mentioned thereby, were evidently - intended for some purpose, and when the defendant paid into court the costs and a part of the rent, withholding the other part, it became evident that the defendant was claiming some deduction from the rental on account of the wrongful act of the plaintiff in depriving him of water. It is true that he states no exact amount of damages he has sustained, but the facts alleged show that he was damnified. It appeared from the evidence that the plaintiff had failed to pay eight dollars water rates which she should have paid and that by reason thereof the defendant’s butcher shop had been deprived of its supply of water from February twentieth to April third, the day of trial. The money paid into court became the property of the plaintiff. The damages, therefore, allowed the defendant by the court were eight dollars and sixty-one cents. We cannot say that the amount is unreasonable or that it is not justified by the evidence.

The defendant, therefore, paid into court all arrearages of rent, together with the costs, and the judgment in his favor was proper.

The judgment of the County Court should be reversed and the judgment of the City Court affirmed, with costs to the defendant in both courts.

All concurred (Lyon, J., in result), except Smith, P. J., dissenting, in opinion.

Smith, P. J. (dissenting):

Mr. Justice Kellogg says that the County Court reversed the City Court on the question of pleading, while the opinion of the county judge puts his reversal both on the question of pleading and on the question of proof. He further says the County Court reversed the judgment on the ground if there had been no eviction that the defendant had alleged no damages in the answer and no counterclaim, and, therefore, was in default for the entire rent. The county judge admits the payment into court of part of the rent, and puts his decision upon the ground that the full amount of the rent had not been paid. Because a defendant has alleged an injury without stating in any way the amount of damages and without demand therefor I do not conceive that he has stated a counterclaim Beyond that, without any word of proof as to the extent of damage suffered, we cannot give to him a counterclaim which is not alleged and then hold that he has proven that imaginary counterclaim.

I do not see any escape from the conclusion of the county judge. The defendant has neither alleged his counterclaim for damages nor given a word of proof thereon, and the court clearly is not authorized, even though we could avoid the question of pleading, to supply the lack of proof for the purpose of defeating this summary proceeding. His tender into court was confessedly of only a part of the rent which was due. If he had proven his damage to the extent of the balance of the rent not deposited a different question would have arisen. It seems to me that the judgment ought to be affirmed upon the opinion of the county judge.

Judgment of the County Court reversed and judgment of the City Court affirmed, with costs to the defendant in both courts.  