
    Durant Land Improvement Company, App’lt, v. East River Electric Light Company, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed July 22, 1889.)
    
    1. Landlord and tenant—Summary proceedings—What defense not PLEADED.
    A counter-claim cannot be pleaded in summary proceedings, nor can a tenant plead as a defense the failure of the landlord to perform a covenant to alter, enlarge, rebuild or repair the demised premises; the only answer that a tenant can make is a general denial, or a denial of some specific allegation of the petition.
    2. Same—Necessary allegations—Code Civ, Pro., § 2231.
    Where a landlord commences summary proceedings for the non-payment of rent, as provided by Code Civil Procedure, section 2231, he must allege that the rent is due, and that the tenant has made default in the payment thereof; under a denial of that averment the tenant may prove payment, or that he is not in default.
    3. Same—What not sufficient .defense.
    It is not a sufficient defense to summary proceedings to show that the full amount of the stipulated rent is not payable, nor will the landlord fail if he demands more than his due. 1
    Appeal from eighth district court.
    
      C. J. Hardy, for app’lt; L. A. Giegerich, for resp’t.
   Per Curiam.

A counterclaim cannot be pleaded in summary proceedings, nor can a tenant plead as a defense the failure of the landlord to perform a covenant to alter, enlarge, rebuild or repair the demised premises..

Chief Justice MoAdam has collated, in the second edition of his work on Landlord and Tenant (p. 644), some of the authorities on the subject. The only answer that the tenant can make is a general denial, or a denial of some specific allegation of the petition. In his note on page 642 of the second edition of his work, Chief Justice MoAdam falls into the error of saying that payment of the rent could not be proved under a denial. In this he is mistaken. The landlord, if he proceeds because of the non-payment of rent, is bound to allege in his petition (section 2231) that rent is due, and that the tenant has made default in the payment thereof. Under a denial of that averment, the tenant may prove payment, and thus show that he is not in default, and that no rent is due.

If, for any other reason, no rent be due and payable, the tenant may, under a denial, prove that he is not in default in the payment of his rent.

In The People v. Howlett (76 N. Y., 574), under a denial, the tenant could have proved that the relation of landlord and tenant did not exist, for the reason that the so-called lease was only a shift to cover a usurious agreement for the loan of money, and, therefore, was utterly void; but the court said that in addition to a denial, the tenant had pleaded the facts that showed the lease to be void for usury, and that no harm had been done by such a plea.

The answer of the tenant in this case violates the rules that govern ¡headings in summary proceedings. _

_ The third, fourth, fifth, sixth, seventh and eighth paragraphs, which are intended to set up separate defenses, are each and every one of them, bad in substance, and they present no defence. They amount to nothing more than a series of allegations that the landlords had failed to perform various covenants that they had bound themselves by the lease to perform. If these allegations were all true, they constituted no answer to the landlord’s claim for rent.

But under the denials of the answer, the tenants could claim the benefit of that clause in the lease that provides for an appointment of the rent for the time that they were deprived of the enjoyment of a part of .the demised premises in consequence of the making of alterations and repairs by the landlords.

The lease provides that if the landlord in making alterations or repairs, excluded the tenants from the enjoyment of any part of the premises, “the rent reserved, or such part thereof as shall be justly proportionate to the portion ■or portions of the said demised premises of the use of which the said party of the second part (the tenants) shall be deprived by reason of the control of said premises by said party of the first part (the landlords), shall be suspended or abated. ”

. If the acts of the landlords had entirely prevented the tenants from any use of the demised premises during the period for which rent was claimed, the tenants could have shown, under a denial, that by the terms of the lease, no rent at all was due and payable.

But it was not a sufficient answer to these proceedings to show that the full amount of the • stipulated rent was not payable. The law is that if any rent whatsoever is due, it must be paid if the tenant wishes to retain his lease. The landlord does not fail if he demands more than his due, though he can recover no more than he is entitled to. It has néver been the law that a plaintiff should be turned out . of court without redress because he claimed more than the court considered to be rightfully his. A tenant has no right to retain possession when he confesses, or when it is proved that he is in default in the payment of any part of his rent.

In a case like this, where the amount that he is to pay can only be ascertained by agreement, or, that failing, by a judicial decision as to what is the fair proportion of the rent that he ought to pay, he is bound to appeal to the courts for an adjudication as to his liability if his landlord claims from him more than he concedes to be due.

It was proved that the landlords, in compliance as well with the request of the tenants, as with the provisions of the lease, did make certain alterations and repairs, and that the doing of the work did deprive the tenants of the beneficial enjoyment of a part of the demised premises. From this it results that the tenant is relieved, by the terms of the lease, from paying any more than a fair proportion of the rent. But it does not follow that they are relieved from paying any rent whatever. Some rent is due, and in arrear, and this being so, the landlords are entitled to a final order in their favor. Jarvis v. Driggs, 69 N. Y., 147. If the tenants wish to be relieved of their default, they must tender what is due, and if that cannot be ascertained without a judicial inquiry, they must appeal to the courts to determine the amount.

It is idle to argue that a tenant is not in default until the landlord has demanded the exact sum that is due. He is in default if, when demand is made, he does not pay what is due, whether it be the sum that the landlord demands, or less, or more.

Though we do not concur in all the reasoning of Judge Daniels in Kelly v. Miles (48 Hun, 6), we think that the conclusion that he reached is equitable and satisfactory, and that he has correctly defined the respective duties of landlord and tenant in cases of this description.

We think that the final order should be reversed.  