
    Henry Constant, Respondent, v. John F. Barrett, Appellant.
    (New York Common Pleas
    General Term,
    December, 1895.)
    Leave to appeal, to the Court of Appeals will not be granted where the case is a peculiar one,, and not likely to be of frequent occurrence.
    Motion for leave to appeal to-the Court of Appeals from- a reversal of the judgment of the District Court.-
    
      Wm. II. .Sage, for motion.
    
      Ghas. Strauss, opposed.
   Per Gurmm,..

Although the opinion of the General- Term incidentally deals with the question-of-the'power of the justice of a District Court to entertain an equitable defense to a proceeding to recover real estate, under section 2244 of the Code, as amended in 1893, yet that question is not directly brought up by this appeal, because the decision of the .court proceeded upon the ground that the facts set up constituted no defense. The case is a peculiar one, and not likely to- be of frequent occurrence. It is that of a tenant who acquires an overdue mortgage upon the demised property and desires to set off the debt against the' rent in a summary proceeding: This we held he could not do, and we pointed out the ample remedies at his disposal in an action to foreclose his mortgage. . The question is not one which would authorize us to grant the motion asked for.

Motion denied, with ten.dollars costs.

Present: Daly, Cli. J., Bisohoff and Pryor, JJ.

Motion denied,, with ten dollars costs.  