
    Edward Hett, Appellant, v. Charles Lange, Respondent.
    Second Department,
    July 29, 1910.
    Landlord and tenant — summary proceedings — counterclaim by tenant —setoff—payment of sum due into court — money judgment.
    In summary proceedings brought by a landlord to dispossess a tenant, the latter may counterclaim damages caused by the landlord’s breach of covenant.
    The tenant may not have affirmative judgment on the counterclaim, but can only set off his damages to the extent of the landlord’s claim for rent.
    
      Section 3344 oí the Code of Civil Procedure authorizing such counterclaim is applicable to summary proceedings brought in the Municipal Court.
    Where the sum due for rent exceeds the counterclaim, the tenant may pay the balance into court at anytime before-the warrant issues, and. thereupon the landlord’s right to dispossession terminates and the proceeding must be dismissed.
    .Where the landlord does not ask a judgment for rent due but merely seeks to dispossess the tenant for a failure to pay, it is error to render a money judgment in his favor.
    Appeal by the plaintiff, Edward Hett, from an order and judgment of the Municipal Court of the city of Hew York, borough of ' Richmond, rendered on Hovember 19, 1909, in a summary proceeding brought to dispossess the tenant, respondent, for nonpayment of- rent.
    
      Wilson R. Mendell, for the appellant.
    
      James A. Donegan, for the respondent.
   Rich, J.:

On March 8, 1909, the appellant leased to the respondent certain ■ premises to be used as-a picnic ground, on which there, was a dining hall, a dancing pavilion, restaurant and hotel, for the period of three years, at a rental of $1,075-for the first year,. $1,225 for the second, and $1,300- for the third year, payable in advance in- equal half-yearly installments. The appellant covenanted and agreed with the tenant' to furnish, without further charge Or cost, the water that . was required for use upon the premises from the first day of May until the eighteenth day of September, of each year. The tenant. took possession and paid the first six months’ rent in advance. The landlord neglected and failed to furnish or supply the water as he had agreed to do, during this six months, or up to September eighteenth. Because of this the tenant omitted to pay the rent due and payable on October 1, 1909, for the six months ending on April 1, 1910, and this proceeding was instituted. The tenant answered, setting up a .counterclaim for damages sustained through the landlord’s failure to furnish water as agreed, and. upon the trial the court found, upon sufficient evidence, that the tenant had sustained damages to the .amount of $350, which he allowed upon the counterclaim, and further found that, after applying this allowance, there was due and unpaid rent to the amount of $187.50, for which he rendered a money judgment in favor of the' landlord and against the tenant. It is contended that the court erred in allowing the counterclaim in any amount, for the reason that the proceeding was brought to dispossess the tenant for rent due and unpaid on October 1, 1909, for six months next following, while the breach of covenant by the landlord occurred during the preceding six months, for which rent had been paid. There is no force in this contention. A counterclaim may be interposed in summary proceedings, in like manner as though the claim for rent in such proceeding was the subject of an action. (Code Civ. Proc. § 2244.) And this section is applicable to the Municipal Court. (Sage v. Crosby, 33 Misc. Rep. 117; Jefferson Real Estate Co. v. Hiller & Sons, 39 id. 784; Flegenheimer v. Dreyer, 72 App. Div. 589.) Although the tenant may not have an affirmative judgment on his counterclaim, he can have his damages set off to the extent of the landlord’s claim (Shotland v. Mulligan, 60 Misc. Rep. 58), and when such damages have been ascertained, set off and the amount of unpaid rent determined, the tenant may pay the same into court at any time before the warrant is issued, and upon so doing the landlord’s right to dispossess terminates, and the proceeding must be dismissed. (Matter of Flewwellin v. Lent, 91 App. Div. 430.) It is further urged that the tenant was awarded a greater amount than claimed, but this contention is not supported by the facts. The counterclaim contains three items, one of $30, one of $250 and one of $280, and the demand for judgment on the counterclaim is for $560. . But the tidal court did err in rendering a money judgment in favor of the landlord and against the tenant. (Jarvis v. Driggs, 69 N. Y. 143, 147; Bennett v. Nick, 29 Misc. Rep. 632.) The landlord had not asked for such a judgment, and could not be compelled to accept it. He brought his proceeding, not to recover the unpaid rent, but to dispossess his tenant for its non-payment, and he was entitled to the relief he asked if any rent was found due and unpaid, and the power of the court was limited to the entry of a final order.

The judgment and order of the Municipal Court must, therefore, be reversed, with costs to the appellant, and the proceeding remitted to the Municipal Court for the entry of a final order in conformity with, the requirements of section 2249 of the Code of Civil Procedure.

Hirsohberg, P. J., Woodward, Thomas and Carr, JJ.,. concurred.

Judgment and order of the Municipal Court reversed, with costs to the appellant, and proceeding remitted to the Municipal- Court for entry of a final order in. conformity with the requirements of section 2249 of the Code of Civil Procedure.  