
    Arthur H. Ely, Appellant, v. Isaac Spiero, Respondent.
    
      Bent — set-off of a breach of covenant to supply an electric current —it attaches to the remedy only.
    
    In an action brought by a lessor to recover a stipulated rent for one month, reserved in a lease of real property, the answer set up as a counterclaim a sum paid by the lessee for an electric current which he alleged the plaintiff had agreed by the terms of the lease to furnish, but which, upon his failure so to do, the defendant had obtained elsewhere, at the lessor’s request, and for which the latter had agreed but had failed to pay, and also set up a second defense which contained no denials whatever, but restated the averments as to the counterclaim’ and further alleged that prior to the commencement of the action-the defendant had tendered the amount of rent sued for, less the sum paid by him for the electric current, and, upon the plaintiff’s refusal to accept it, had deposited it with the clerk of the court to the credit of the action.
    
      Held, that the second defense was insufficient in law in that, so far as it sought to recoup the damages alleged to have been sustained by the plaintiff’s breach of covenant, that matter could only be pleaded as a counterclaim as had been done in the first defense, and that, as a plea of tender of payment, it was unavailing, since it did not allege tender of the entire rent due, but of that amount less the amount of the indebtedness alleged to be due to the defendant from the plaintiff;
    That the provisions of the Code of Civil Procedure involved no departure from the proposition that, in suits at law at least, the privilege of set-off,. with the exception: of mutual accounts of debt and credit; attaches to the remedy only, and hence may not be asserted by way of reducing the plaintiff’s demand until that demand shall have been placed in litigation.
    Appeal by the plaintiff, Arthur IT.- Ely, from an interlocutory judgment of the Supreme Gourt in favor of the defendant, entered-in the office of the clerk of the county of Kings on the 13th day of, October, 1897, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to the second separate defense set out in the amended answer. ’ ’ ’ ■
    
      Edward C. Delavan, Jr., for the appellant.
    
      Louis Cohen, for the respondent.
   Willard Bartlett, J.:

■ This is an action by a lessor against a lessee to recover $416.66, being the stipulated rent for the month of February, 1897, alleged to be due and owing from the defendant to the plaintiff, under a written lease of real property.

The answer, after denying that the defendant covenanted to pay the rent at the times stated in the complaint, and also denying that the plaintiff has performed all the conditions of the lease on his part, sets up a counterclaim alleging that, by the terms of the lease, the plaintiff was to furnish the defendant with an electric current sufficient to run a three-horse power electric motor; that the plaintiff failed to supply said current; that thereupon the defendant, at the special instance and request of the plaintiff, applied for the current to the Edison Electric Illuminating Company, which furnished the same ; that the plaintiff promised and agreed to pay therefor; that the reasonable value of the electric current so furnished was-$38.17, of which the plaintiff has paid only $24.79, leaving $13.38 which the defendant was obliged to pay, and actually did pay, to the Edison Electric Illuminating Company.

No question is raised as to- the legal sufficiency of this counterclaim.

The demurrer is interposed to the second separate and distinct defense set up in the answer. That defense contains no denials whatever. It restates in substance the foregoing averments of the counterclaim in reference to the plaintiff’s agreement to furnish the defendant with an electric current, and his breach of that agree-. merit, and contains the following additional allegation:

Eighth. That prior to the commencement of this action the defendant duly tendered to the plaintiff herein the sum of $403.29, being the sum of $416.66 for rent for the month of February, 1897, less the aforesaid sum of $13.38, the amount theretofore paid to the Edison Electric Illuminating Company, of Hew York, for electric current furnished as aforesaid, which amount the plaintiff refused to accept, and which said sum of $403.29 the defendant has deposited with the clerk of this court to the credit of the above-entitled action.”

It is to ‘be noted that the matters contained in the defense, to which the demurrer applies, are pleaded solely as a defense, and are not denominated a counterclaim in that part of the answer. So far as the defendant apparently desires to rely upon them as a counterclaim, he has set them out in the earlier portion of his pleading, where they remain unquestioned by the demurrer. We have, therefore, to deal with this second part of the answer considered only as a defense in contradistinction to a counterclaim.

Thus considered, I think it is insufficient in law.

Since the decision in the case of The May.or of New York v. Mabie (13 N. Y. 151) the rule has been established in this State that a tenant sued for rent can recoup such damages as he may have suffered by reason of a breach of the landlord’s covenant to repair the premises. (Kelsey v. Ward, 38 N. Y. 83; Thomson-Houston El. Co. v. Durant L. I. Co.,. 144 id. 34, 44.) But the lessee’s right to recoup which is asserted in cases of this kind means simply the right to plead a counterclaim under the Code. As Professor Pomeroy has pointed out in his able and instructive work on American code procedure, the recoupment of damages of the old practice has been transferred by all the Codes into a species of counterclaim. (Pom. Rem. & Rem. Rights, § 736.) In Myers v. Burns '(35 N. Y. 269) and Gook v. Soule (56 id. 420) the damages growing out of the landlord’s breach of his covenant to repair were in each instance set up specifically as a counterclaim; and that the breach of that covenant could not be pleaded simply as a defense is necessarily implied by the language of Andrews, Oh. J.,, in .the case of The Thomson-Houston El. Co. v. Durant L. I. Co. (supra), where he says: “ The plaintiff, having entered upon the demised premises under the lease and continued in possession, was bound to pay the rent reserved, and he could not defend on the ground that the covenant on the part of the lessor to put the premises in repair, or to make changes or alterations required by municipal or other legal authority, had not been performed. On the other- hand, the lessor, when sued on his covenants, could not allege in bar of, the action that the lessee had remained in possession of the premises. But either one, in an action brought against him by the other, could counterclaim any demand arising under the lease against the plaintiff in the action. The tenant in the suit for the rent could recoup any damages for a breach of the covenants to repair, add the landlord, if sued by the tenant for a breach of the covenants on his part, could counterclaim the rent reserved by .the lease.” It is plain that the word “ recoup ” is here employed in the sense of “ counterclaim,” and that it cannot be understood in any other meaning consistently with the context. Mr. Taylor says, in his well-known treatise on Landlord and Tenant: “■ The landlord’s covenant to repair and the tenant’s to pay rent are independent covenants, and at common law a breach of the former is no defense to an action On the latter. And this still remains the law, both in England and the United States. On the other hand, it is now very generally held that the landlord’s failure to repair, though not an eviction, may still avail the tenant by way of counterclaim or recoupment, and as well when the'action, is for rent as when it is for use and occupation.” (1 Taylor Land!. & Ten. [8th ed.] § 331.) The agreement of the plaintiff in the present case to furnish an electric current of a specified power to the defendant was just as independent of the defendant’s covenant to pay rent as a covenant to repair would he, and it is equally subject to the rule thus laid down..

There is nothing in the defense to which the demurrer is directed showing the existence of any special facts calling for the application of equitable, as distinguished from strictly legal principles, in the case at bar, and under such circumstances, as was said by Mr. Justice Bradley in Armstrong v. McKelvey (39 Hun, 213,219; affd., 104 H. Y. 179) equity follows the law on the subject of set off.” (See 2 Story Eq,. Juris. 1434.)

Finally, we have to consider the sufficiency of the second separate defense as a plea of tender of payment. In this view, I do not see how it can be maintained. In the first place, this defense, by failing to deny any of the allegations of the complaint, admits $416.66 to be due from the defendant to the plaintiff on account of the rent. The answer sets up a tender and payment into court of only $403.29. The difference of $13.38 represents the amount which the defendant has paid for the electric current which the plaintiff agreed to furnish. That the defendant may rightfully counterclaim this sum against the plaintiff has already been shown, but if he wishes to oppose to the plaintiff’s cause , of action not only such a counterclaim, but a separate and distinct defense of tender of payment, he ■ must allege a tender, and a tender in money, of the whole amount of rent which he admits to be due. It will not suffice for a tenant to "plead a-'tender before action of the rent subsequently sued for less the amount of a debt which he alleges is due to him from his landlord. To permit such a course would he to treat an offer to satisfy a cause of action as equivalent in law to an offer to pay money in fulfillment of a contract calling for the payment of - money.. There must be a tender of the whole rent to make it effective as a defense. In Dixon v. Clark (5 Man., Gr. & S. 365, 377; 57 Eng. C. L. 365) the Court of Common Pleas considered the general question whether a tender of part of an entire debt was good, and the judges expressed the opinion on principle that such a tender was bad: In Searles v. Sad-grave (5 El. & Bl. 639), -where the plaintiff’s claim amounted to eighty-two pounds, the defendant pleaded a tender of fifty-five pounds, six shillings, and by rejoinder alleged that the plaintiff, at the time of the tender, was indebted to him in an amount equal to the larger sum less the fifty-five pounds, six shillings, so tendered, which the defendant offered to set off. The Court of Queen’s Bench, through Lord Campbell, Ch. J., held that the rejoinder was neither good at common law nor authorized by the Statute of George II (2 G. 2 C. 22) relating to set-off. The defendant was given leave to amend by pleading payment of fifty-five pounds, six shillings, into court and set-off as to the residue of the plaintiff’s claim, but this fact does not affect the decision in respect to the insufficiency of the alleged tender. Except as to connected accounts of debt and credit, the set-off of the English statute was a doctrine which had no application before suit brought, and, consequently, could not be allowed to reduce the amount necessary to constitute a valid tender made prior to the commencement of the action. The law of set-off, as formulated in the Revised Statutes of this State, was substantially •the same as that prescribed in the' English Acts of Parliament on the subject (Jordan v. Nat. Shoe & Leather Bank, 74 N. Y. 467, 474); and the present provisions of the Code.of Civil Procedure involve no departure from the proposition that in. suits at law at least the privilege of set-off, with the exception above noted of mutual accounts of debt and credit, attaches to the remedy only, and, hence, may not be asserted by way. of reducing the plaintiff’s demand until-that demand shall have been placed in litigation.

It is to be' observed that the tender alleged in the defense, which is the subject of the demurrer in the present case, is a-tender before the commencement of the action and, hence, does not fall within the provisions of the Code relating to tender after suit. (Code Civ. Proc. §§ 731-734.) '

To sum up what, has been said, I think that this defense is insufficient in whatever light it may be viewed. So far as it seeks to. recoup the damages alleged to have been sustained by the plaintiff’s breach of covenant, the matter can only properly be pleaded as a counterclaim—as indeed it has been pleaded in the first part of the answer. So far as the defense is intended as a plea of tender it is unavailing, because, before action brought, a tenant cannot deduct from the rent due under his lease a sum which he claims as damages for a breach of an independent covenant on the part of his landlord and make a valid tender to the landlord of the balance.

For these reasons, I advise the reversal of this interlocutory judgment:

All concurred.

Interlocutory judgment reversed and judgment directed for plaintiff on demurrer, without costs.  