
    St. Michael Protestant Episcopal Church, respondent, v. Behrens el al., appellants.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed June 7, 1886.)
    
    1. Landlord and tenant—Action for rent—Evidence—When error to
    DIRECT VERDICT FOR PLAINTIFF—IMPROPER EXCLUSION OF EVIDENCE.
    Where, in an action for rent, there was sufficient evidence to go to the jury on the question raised by the pleadings, whether the defendants’ premises became untenantable and unfit for occupancy by reason of the defective plumbing in a part of the building the defendants were not bound to keep in repair and by reason of overflow into their premises, it was error to direct a verdict for the plaintiff; and it was also error to exclude evidence of the effect of the condition of the premises on defendants’ employees.
    3. Same—Appeals from district courts—Jurisdiction to hear re-argument—How LONG CONTINUES.
    The general term of the common pleas has jurisdiction to hear re-argument in appeals from the district courts until t.he return has been remitted to the district court, and it is no longer a part of the record of the appellate court.
    
      8. Same—Residence oe religious corporations.
    The residence of a religions corporation, within the meaning of the district court act, is not where it holds divine worship, but where it transacts its business.
    4. Same—Counter-claims—Code oe Civil Procedure, § 501.
    Where the liability of defendants is joint, and not joint and several, and a joint judgment only can he rendered, a counter-claim in favor of one of the defendants only, cannot be allowed.
    Be-argument of an appeal from a judgment in favor of plaintiff, entered in the second district court of the city of New York, on the verdict of a jury, rendered by direction . of the court.
   Bookstaver, J.

The respondent takes a preliminary objection to the hearing of the re-argument on the ground that the order granting it was made too late. The order of affirmance was entered January 8th, 1886. The judgment of affirmance was entered January 14th, 1886, and the order for re-argument was not granted until the 15 th of January, 1886.

In the cases cited by the respondent the return had either been sent down from the appellate court to the court below, or in some other way the court had lost jurisdiction; but in the case at bar the return and the judgment entered on it remain in this court. The court has control over its 'own records, and in Cochran’s ex’r, etc., et al. v. Ingersoll et al. (66 N. Y., 652), where the general term not only reversed the order appealed from, but also a referee’s report and an order confirming the same, although not appealed from, the court of appeals say there was no error in its so doing, as all the orders reversed and set aside were but a series comiected with the same matter, and the general term was authorized to set aside the whole, leaving the records of the court clear and consistent. It is only when the return has been remitted to the court below, and it is no longer a part of the record of this court, that its jurisdiction is lost. We think, therefore, that we have jurisdiction to hear a re-argument in this case.

The appellant’s first contention is that the action was not brought in the proper district, and the complaint should have been dismissed on defendants’ motion on that ground.

The plaintiff is a religious corporation, and its church edifice is situated on Tenth avenue, between Ninety-ninth and One Hundred streets, in the city of New York; and both the defendants reside at No. 593 Southern Boulevard, near Alexander avenue.

Chapter 410, Laws of 1882, section 1289, provides that ‘‘an action or proceeding of which” district courts have jurisdiction must be brought:

“ (1). In a court held in a district in which either the plaintiff or defendant, or one of the plaintiffs or one of the defendants, resides,” etc.

The question, therefore, turns upon where the residence of the plaintiffs is. The residence of a corporation is deemed to be at the place where its general business is transacted. Conroe v. National Protective Insurance Co., 10 How. Pr. R., 403 ; Hubbard v. Same, 11 id., 149 ; People v. Cassity, 46 N. Y., 51.

The object of the incorporation of the plaintiff is to provide a means of holding property in succession and managing it for religious purposes ; where it holds divine worship or the religious purposes it has in view are carried out is immaterial.

In order to determine what district court has jurisdiction in matters of the kind under consideration, we have only to inquire where its business affairs are managed. The return shows that the principal office of the plaintiff is its treasurer’s office, 58 Pine street, and that it transacts most of its business there. This is within the jurisdiction of the second district court, and consequently the motion to dismiss the complaint, on the ground of want of jurisdiction, was properly denied.

The second ground of appeal presents a more serious question. The action was brought to recover rent of a part of the premises No. 90 Chambers street, for the quarter ending April 30, 1885, under a lease from plaintiff to the defendants for a term of one year from May 1, 1884. To this the defendants interposed an answer, claiming that the premises became untenantable by reason of the improper character and condition of the plumbing in the building, whereby the defendants were compelled to vacate the premises leased by them, and that they did so in the month of January, 1885, before entering upon the last quarter.

On the trial the lease was offered in evidence, from which it appeared that the defendants agreed to keep the plumbing work on their part of the premises in repair. But the defendants gave evidence tending to show that the plumbing work on another part of the premises, which they were not bound to keep in repair, was in such a bad condition that the urinals overflowed and a part of their contents ran on defendants’ premises, and that in the mornings tho smell was so offensive that the employees could not enter their premises until the smell was dissipated, and that at times this smell was unbearable. Evidence was also given tending to show that this state of affairs was not caused by any fault or neglect of the defendants, and that they called the attention of the plaintiff’s agent to the matter some time before they moved out, but that plaintiff failed to remedy the evil.

Chapter 355, Laws of 1860, allows the lessees or occupants of a building which, without any fault or neglect on their part, has been injured so as to be untenantable and unfit for occupancy, to surrender it, and relieves them upon so doing from liability for rent, unless otherwise expressly provided by written agreement or covenant.

There is no written agreement or .covenant in the lease which prevents the defendants from availing themselves of the provisions of this act in a proper case. And the court of appeals have expressly held that defective plumbing work may make a building untenantable and unfit for occupancy. Vann v. Rouse, 94 N. Y., 401; Butter v. Kidder, 87 id., 98; see, also, Bradley v. Govcouria, 67 How. Pr., 76.

We think there was sufficient evidence in this case to go to the jury on the question whether the defendants’ premis.es became untenantable and unfit for occupancy by reason of the defective plumbing in a part of the building the defendants were not bound to keep in repair, and by reason of the overflow into their premises, without any fault or neglect on their part; and that the justice erred in directing a verdict for plaintiff.

We also think it was error to exclude evidence of the effect of the condition of the premises on defendants’ employees, as such evidence has a tendency to show whether the premises were so injured thereby as to be untenantable and fit or unfit for occupancy.

The record does not show whether or not the plaintiff was a party to the proceedings before the board of health. If it was not, such proceedings were not binding on it, and were properly excluded.

Evidence of the counter-claim was properly excluded. ■ The liability of the defendants was joint, and not joint and several; therefore a joint judgment only could be rendered against them. The counter-claim is in favor of one of the defendants only. The Code of Civil Procedure has not so far changed the law as to allow such a counter-claim in an action of this kind.

Section 501 expressly provides that “the counter-claim” « * * must be “in favor of the defendant, or one or more defendants, between whom and the plaintiff a separate judgment may be had in the action.”

But for the error of the justice in not submitting the questions above indicated to the jury, and the exclusion of the evidence as to the effect of the condition of the premises on defendants’ employees, the judgment of this court, entered on the 14th of January last, must be vacated and set laside, without costs to either party; and the judgment of the court below is hereby reversed and a new trial granted; costs to abide the event.

Allen, J., concurred.  