
    Eagle Improvement Co., Respondent, v. Otto Wagner, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1915.)
    Landlord and tenant — action for rent against under-tenant — contention as to right of possession — when court would not have jurisdiction.
    Where in an action for rent against an under-tenant it appears that the original tenant sub-leased one-half the premises and that his interest as lessor was assigned to plaintiff on January 22, 1915, the under-tenant was entitled to counterclaim for so much of the January rent, which was payable in advance, as was necessary to satisfy his claim against the tenant under an agreement that he should reimburse himself out of the rentals for goods sold to the tenant.
    A contention that as defendant’s right of possession depended upon Ms payment of rent the plaintiff as dominant landlord, his immediate tenant being insolvent, was entitled in equity to proceed against the under-tenant for rent, held untenable, as no facts were alleged in the pleadings that would warrant such relief, the necessary parties not being before the court, and the court below would not have jurisdiction of such action.
    
      Appeal from a judgment of the City Court of the city of New York in favor of the plaintiff entered upon a directed verdict.
    Arthur Butler Graham (William H. Woolley, on brief), for appellant.
    M. Harold Hochdorf, for respondent.
   Page, J.

The action is to recover rent for the months of January and February, 1915. The plaintiff, as owner, leased a store and basement to one Joseph Liebling for a term of five years commencing February 1, 1911. Liebling thereupon leased to the defendant one-half of the store and basement for a like period. Then Liebling, by an assignment indorsed on the lease of the defendant, assigned his interest as lessor therein to Anna Liebling under date of January 1, 1912, acknowledged January 5, 1914, and Anna Liebling in turn assigned her interest in the lease to the plaintiff under date of January 22, 1915. Joseph Liebling collected the rent including the rent for December, 1914, and it is conceded that the defendant had no knowledge of the assignment to Anna Liebling.

Wagner had sold goods to Liebling prior to December 8,1914, to the value of $386.85. In the answer the defendant had alleged, that at and prior to the dates of purchases, it was agreed between the defendant and Liebling that the defendant should reimburse himself out of the rentals due and to become due from the defendant to said Liebling and said Liebling did then and there sell, assign and set over unto defendant all moneys due and to become due from defendant to said Liebling upon the lease referred to in the complaint in. paragraph second thereof in an amount sufficient to repay the defendant for said purchases.”

Liebling made defendant an allowance on account of his debt of $100 out of the December rent. The learned trial judge refused to receive any evidence as to this “ counterclaim.” The assignment to plaintiff was dated January twenty-second. The rent for the month of January was payable in advance. By virtue of the assignment the plaintiff took only such rent as was then due to the assignor or should thereafter become due. If the evidence warranted the conclusion that Liebling’s agreement gave to the defendant the right to appropriate so much of the January rent as was necessary to satisfy his debt, only the balance of that rent would have passed to the assigns. Defendant therefore would have the right to offset so much thereof as was necessary to satisfy his debt. The learned counsel for respondent argues that, as defendant’s right of possession depended upon his payment of rent, the plaintiff,' as dominant landlord, in equity was entitled, his immediate tenant being insolvent, to proceed directly against the under-tenant for the rent. This, however, is not a suit in equity. No facts are alleged in the pleadings that would warrant such relief, the necessary parties are not before the court and the City Court would not have jurisdiction of the action. We are of the opinion that the defendant should have been allowed to present Ms evidence under his counterclaim by way of offset.

Guy and Bijur, JJ., concur.

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