
    Simon Uhlfelder and Abraham Weinberg, Respondents, v. Frank E. Loughran, Appellant.
    (Supreme Court, Appellate Term,
    June, 1907.)
    Landlord and tenant — Rights, duties and liabilities in regard to the premises — Repairs, insurance and improvements — Remedies of tenant for failure to make repairs — Counterclaim in action for rent. Set-off and counterclaim — Subject matter — Set-off against claim for rent — Damage for failure to repair.
    Where a tenant, in consideration of the landlord’s promise to make certain repairs, enters into an oral lease for another year, he may, in an action for rent,- counterclaim for damages accruing from the landlord’s breach of his covenant to -repair, notwithstanding he retains possession of the premises.
    Appeal by the defendant from a judgment in favor of the plaintiffs, rendered in the Municipal Court of the city of New York, twelfth district, borough of Manhattan.
    Morris Bradford Butler,, for appellant.
    Max Silverstein, for respondents.
   Goff, J.

This is an action for one month’s rent due from defendant to plaintiffs under an oral lease. Defendant was a tenant in an apartment house at the comer of Riverside Drive and Ninety-fifth street, when, in April, 1906, it came into the hands of plaintiffs to whom defendant attorned. In September following, defendant agreed to continue for another year, but no lease was ever signed. Some repairs were to be made, but whether that promise was made before the renewal and as a special inducement therefor, or whether the promise was subsequent thereto, is the point at issue. If made after the oral lease was completed, it is evident that such a promise would be without consideration and therefore unenforceable. The defendant’s contention is that he had already planned to go to a newly finished apartment, upon hearing which plaintiffs promised to make certain repairs which were specified if defendant would remain. Upon that promise defendant agreed to release at an advance of twenty-five dollars a year. Much conflicting testimony was offered as to whether the work was ever completely finished and as to the character of the work that was done. It was not disputed that defendant paid his October rent some time within the latter part of the month. Defendant set up a counterclaim for seventy-five dollars for failure to repair and demanded a jury trial. On substantially these facts the court directed a verdict for the plaintiffs for fifty-two dollars and eighty cents, with the exception of the amount of ten dollars, which defendant testified he had been compelled to spend in repairing the floors. Whether this latter sum should be allowed was left with the jury who returned a verdict for plaintiffs for the full amount.' Although failure to repair is not a defense to an action for rent, the damages accruing thereby ‘ may be set up as a counterclaim; and “ The taking and retaining of the demised premises by the lessee is not inconsistent with a remedy on the covenants to repair made with the landlord and would not be a waiver of the tenant’s right to claim damages for a breach.” 144 N. Y. 34, 44. In a case quite similar to the one at bar, the court said: “ Where there is an ordinary covenant to repair made by a landlord, the measure of damages is bounded cither by the actual costs of making the needed repairs, or the difference in the rental value of the premises as they were and as they should have been had the contemplated repairs been made. Upon the pleadings, the counterclaim should not have been dismissed, and the judgment must be reversed.” "47 Misc. Rep. 384. See also Code Civ. Pro., § 501; 56 N. Y. 420; 38 id. 83; 35 id. 269; 56 App. Div. 420; 38 id. 421; 28 id. 485; 35 Hun, 202. The respondents’ contention that the case at bar is to be distinguished, for the reason that the lease is oral, is without foundation, if a valid consideration be satisfactorily established. The learned court below erred in directing a verdict for plaintiffs.

Gildersleeve and Fitzgerald, JJ. concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  