
    John Hudson, as Trustee, Etc., Appellant, v. John J. Tarlton, Respondent.
    Appeal from interlocutory judgment overruling demurrer to defendant’s counterclaim.
    J. Vincent, for appellant.
    J. H. Hildreth, for respondent.
   Schuchman, J.

The complaint sets up a cause of action for rents for January, February and March, 1898, for a store and cellar. The answer admits the cause of action set forth in the complaint and alleges by way of counterclaim damages arising to the use and occupation of the said premises for the month of November, 1897. It does not allege a-covenant on the-landlord’s part to repair. The answer, therefore, does not contain a good cause of action by way of counterclaim. Reissman v. Jacobowitz, 22 Misc. Rep. 551.

Judgment appealed from reversed, with costs, and demurrer to counterclaim sustained, with costs to plaintiff.

Olcott, J. (concurring).

I concur in the result upon the authority of Edgerton v. Page, 20 N. Y. 281, and Romaine v. Brewster, 10 Misc. Rep. 120.

Judgment reversed, with costs, and demurrer sustained, with costs.  