
    John C. Provost, Res’pt, v. Thomas F. Donohue, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    1. Landlord and tenant — Summary proceedings to recover possession OP REAL PROPERTY—PLEADING-ANSWER.
    Where in summary proceedings to recover possession of real property by a person claiming as landlord, the defendant alleged that the identical subject-matter as stated in the petition, had been brought and tried before a justice of the peace, whose judgment in defendant’s favor was still in force and unsatisfied, Held, error to strike out such answer.
    :2. Same—Defense — Denial that relation of landlord and tenant exists—Adverse clams.
    In such proceedings a defendant besides denying that the relation of landlord and tenant exists is entitled to set up that his occupany is" that of an equitable owner under an agreement with plaintiff.
    
      Appeal from a final order in supplementary proceedings, entered in Queens county after a trial before a jury, and on. the verdict of the jury in favor of the landlord.
    This proceeding was brought' by plaintiff, as landlord, against defendant, as tenant, to recover possession of real property in Long Island City for non-payment of rent.. The answer to the petition: First. Denies each and every allegation therein contained.
    
      Second. Alleges that no relation of landlord and tenant: exists between the plaintiff and defendant in respect of the premises described in the petition herein; that this respondent is in possession of and using and occupying said premises as the equitable owner thereof, under and pursuant to an agreement with said plaintiff for the redemption thereof’ from sale under foreclosure, and the payment to the said plaintiff of the moneys, interest and costs represented in the said foreclosure proceedings, such payment to be made out of the moneys to be realized from a sale for the benefit of this respondent, and to be applied to the redemption of' the property described in these proceedings, and which agreement of sale the said plaintiff unjustly and illegally neglects and refuses to complete or perform, respondent, being willing and able, as soon as the said plaintiff completes and fulfills the aforesaid agreement, to pay and satisfy to him, all claims and demands accruing out of the transaction and agreement mentioned above in respect to the premises described herein. And for .a further answer the said defendant alleges that heretofore the identical subject-matter, as stated in said landlord’s petition, was. brought before a justice of the peace in and for Long Island City, by precept, returnable before said justice on the 5th day of April, 1888, and which proceedings were then and there adjudged in favor of the said tenant, and. by a final order therein made and entered by said justice in favor of said tenant and against said landlord, under the statute; and that said order, together with the costs adjudged to said tenant pursuant to statute, still remains of record, unsatisfied and unreversed.
    All of this answer after the first sentence in the second paragraph, denying that the relation of landlord and tenant, existed in respect of the premises, was stricken out on motion of the landlord.
    
      S. B. & D. Noble, for app’lt; L. N. Manley (George A. Stearns, of counsel), for resp’t.
   Pratt, J.

The evidence in this case is ample to sustain the verdict of the jury, and the only questions raised relate-to the rulings of the judge who presided at the trial.

There are many exceptions but the decision must turn upon the question whether the portions of the answer-stricken out, and the items of evidence excluded, constituted any defence to the plaintiff’s claim.

That the plaintiff was the owner of the premises that they were occupied by the defendant, and that there was a failure to pay for use and occupation,' there is no dispute.

It is also clear that, if there was any renting, that the rent reserved was at the rate of twenty dollars per month.

We think it was error to strike out the answer of the defendant. Among other matters, the defendant alleged that the identical subject matter as stated in the plaintiff’s petition had been brought and tried before a justice of the peace of the county wherein the premises were situated, which resulted in a judgment in favor of the defendant, and that the same was in force and unsatisfied.

. This matter was sufficiently pleaded, and, if proved, would constitute a bar to plaintiff’s proceeding.

The defendant also set up an agreement whereby he claimed to occupy the premises, to the effect that his occupancy was that of equitable owner, and that he was to pay all claims and demands of the plaintiff out of moneys accruing from a sale of the property agreed to be sold by the plaintiff.

There may be some question whether this part of the answer is sufficiently definite and certain to raise an issue, but this point was not raised by the plaintiff. Where a party alleges an agreement, and the terms are set out, the law presumes it a valid agreement, i. e., if the matter relates to real estate, and to be valid, it must be in writing; in the absence of any statement that it is verbal merely, the law presumes it is in writing, so that taking the pleading as it appears on record, the defendant pleaded facts utterly inconsistent with the plaintiff’s allegation that defendant was his tenant at an agreed rent of twenty dollars per month.

It is true that the issue in this class of cases is whether there exists the relation of landlord and tenant,' and the amount of rent due; but in contesting this issue a defendant is not restricted to a mere denial of the tenancy, but he may prove any fact having a direct tendency to disprove the allegations of the petition.

The plaintiff was permitted to state what conversations lie had with the defendant about the latter’s occupancy of the premises, and it is difficult to see why the defendant was not allowed to state his version of what took place in reference to the same matter.

What the defendant attempted to allege and prove was not strictly an equitable defence, but a denial and rebuttal of the plaintiff’s petition and proof.

If these views are correct, it follows that the judgment must be set aside.

Judgment reversed with costs.

All concur.  