
    William W. Richards et al., Appellants, v. Cortland B. Littell, Respondent.
    (City Court of New York— General Term,
    March, 1895.)
    A claim for specific performance of a contract for the sale of the land cannot be set up as a counterclaim in an action in the City Court of New York for use and occupation, as that court has no power to grant affirmative relief of that character.
    Appeal by plaintiff from interlocutory judgment in favor of the defendant, overruling the demurrer to defendant’s counterclaim.
    
      E. Muerstél, for appellants.
    
      M. O. Ernsberger, for respondent.
   Ehrlich, Ch. J.

The action is to recover for the use and occupation of certain premises by the defendant as plaintiffs’ tenant.

The defendant, in his answer, admitted the use and occupation of the premises, but denied the other allegations of the complaint, evidently intending to put in issue the fact of tenancy.

He then pleaded, by way of counterclaim, that the plaintiffs entered into a contract with him whereby they agreed to convey to him the property in question on certain terms and conditions, and demanded; by way of relief, tliat the court decree specific performance of the contract.

Plaintiffs demurred to this on the ground that the court had not jurisdiction to grant the relief claimed.

The court below overruled the demurrer and granted an interlocutory judgment against plaintiff for the relief demanded, to wit, that the plaintiffs execute and deliver to the defendant a good and sufficient deed for the conveyance of the premises described in the complaint, etc. This the court had no power to do.

The Oity Court has no equity jurisdiction, and, while equitable defenses may be interposed, they are permitted for defensive, not affirmative purposes. Rodgers v. Earle, 5 Misc. Rep. 164.

The denial in the answer sufficiently raised the issue of tenancy, and the relief demanded was of that affirmative character which a court of equity alone could grant.

It follows that the interlocutory judgment must be reversed and the demurrer sustained, with costs.

Newburger, J., concurs.

Interlocutory judgment reversed and demurrer sustained, with costs.  