
    Moses Maas, Appellant, v. Leon H. Kramer, Respondent.
    (Supreme Court, Appellate Term,
    December, 1906.)
    Landlord and tenant: Landlord’s title and reversion — Estoppel of tenant — As to adverse title acquired during tenancy; Rent and advances -— Actions — Plea — Sufficiency of counterclaim.
    Where the tenant of a store having a privilege of renewal for three years from May 1, 1906, unless the owner could get more rent from somebody else, sublets the same for five years from May 1, 1904, and the subtenant obtains a three-year lease of the store from the owner at an increased rental, he cannot, in an action for the rent of March and April, 1906, counterclaim for the difference in the rent; his own act having rendered performance on the part of the tenant impossible.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of ¡New York, fifth district, borough of Manhattan, rendered in favor of the defendant
    Spiro & Wasservogel, for appellant
    Jacob Rieger, for respondent
   Davis, J.

The plaintiff brought the action to recover $190, the rent for March and April, 1906, of a store in Grand street. On the trial credit was given the defendant for $100 deposited by him as security, and there was no dispute as to his obligation to pay the remaining $90. The defendant set up a counterclaim, and this was the real issue litigated. The defendant held under a lease from the plaintiff which by its terms was to run from May 1, 1904, to May 1, 1909. Plaintiff was not the owner, but he held under a lease from the owner which expired May 1, 1906, unless further renewed. Plaintiff had an arrangement with the owner under which his lease was to be renewed unless the owner could get more rent from somebody else. Sometime in Pebruary, 1906., which wa,s about two months before the e$piration. of plaintiff’s lease from the owner of the property, the defendant began negotiations with the owner for a lease of the whole building for a term of three years from Hay 1, 1906. He claims to have been forced to this action by the statement of the owner that he would have to pay an increased rental 'after Hay 1, 1906, and by the fact that plaintiff’s control over the premises as lessee did not extend at that time beyond Hay 1, 1906. By a written instrument signed February 26, 1906, the defendant closed his negotiations with the owner, agreeing to take the whole premises at $6,000 per year for three years. Although the plaintiff was not a party to this arrangement, both the owner and the defendant recognized his claim to have a further lease and provided in the writing that he should be released from the obligation to secure the defendant in possession of the store beyond Hay 1, 1906, as called for by his lease to the defendant." The lease of the whole premises to the defendant was not made; but he took a lease of the same store from the owner at an increased rental for three years from Hay 1, 1906, and he seeis by his counterclaim to hold the plaintiff responsible for this result. His claim is that the plaintiff failed to carry out the terms of his lease by securing him in possession at the same rental for the three remaining years of the lease. But the defendant’s own act rendered impossible plaintiff’s performance. The plaintiff had until Hay 1, 1906, to supplement his own term by a further term of three years; but two months before this date the defendant interfered and himself made an agreement with the owner to take the whole house, and, on Harch 28, 1906, actually took a three-year lease of the very store leased to him by the plaintiff. His own act of competition for the lease of the whole building is thus made the occasion of his strange claim against the plaintiff. We think he ought not to recover. There could be no breach on the part of the plaintiff until Hay 1, 1906, and plaintiff’s failure was caused directly by the defendant himself in talcing the lease of February 27, 1906. Horeover, there was no proper evidence of rental value by which the damages if any could be estimated.

The judgment is reversed, with costs to appellant, and judgment directed for the plaintiff for ninety dollars, together with costs and disbursements below.

Gildersleeve and Fitzgerald, JJ., concur.

Judgment reversed, with costs to appellant, and judgment directed for plaintiff for ninety dollars, with costs and disbursements below.  