
    Frederick B. Myers, Appellant, v. Moses S. Rosenback, Respondent.
    (City Court of New York — General Term,
    January, 1895.)
    Where a tenant Is induced to sign á lease by fraudulent representations as to the condition of the building, the fact that he remains in possession for a few days after discovering the fraud, -in reliance upon assurances that the defects would'be remedied, does not make him liable for the month’s rent.
    A denial of a motion to dismiss a counterclaim and the admission of evidence to sustain it, although erroneous, are not ground for reversal where the jury found against the defendant on the counterclaim.
    Appeal from judgment in favor of the defendant.
    
      Hamilton JR. Squier, for appellant.
    
      JETorwitz c& JEEershfield, for respondents.
   Fitzsimons, J.

The defendant’s answer alleged that he was induced to sign the lease in question by fraudulent representations made by plaintiff. This issue was, in our judgment, clearly established in defendant’s favor by a preponderance of evidence. The fact that defendant remained in possession of the demised premises until June, sixth, under the circumstances, did not make him liable for the June rent, for the reason given by the General Term of this court. See 5 Misc. Rep. 337; 25 N. Y. Supp. 528; Wallace v. Lent, 1 Daly, 481.

The plaintiff suffered no injury because of the denial of his motion to dismiss defendant’s counterclaim. The jury found against the defendant upon said counterclaim. The same thing may be said of the alleged error of the trial justice concerning the admission of evidence to sustain the counterclaim. If there were any errors, evidently they were harmless so far as plaintiff was concerned. After carefully reading the record we are convinced that the judgment is a just one and should be affirmed.

Judgment affirmed, with costs.

Ehrlich, Ch. J., and Fitzsimons, J., concur.

Judgment affirmed, with costs.  