
    Franklin Building Company, Landlord-Appellant, v. John B. Finn, Tenant-Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1914.)
    Summary proceedings — for nonpayment of rent — landlord and tenant — pleading.
    Where in a summary proceeding for nonpayment of rent the tenant counterclaims for damages caused by the negligent performance of subway construction work done pursuant to an order of the public service commission, and it clearly appears that the work was done by an independent contractor over which the landlord had no control and for'the acts of which he could not be held legally liable, the submission to the jury of the counterclaims after the denial of plaintiff’s motion to dismiss them is prejudicial error for which a judgment in favor of the tenant upon such counterclaims will be reversed.
    Whitaker, J., dissents.
    
      Appeal from a final order of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing a summary proceeding to recover the store, basement and sub-basement of 358 Broadway, New York city, because of non-payment of rent, entered on a verdict.
    Carter, Ledyard & Milburn (John G. Milburn, Jr., and Thomas S. Doughty, of counsel), for appellant.
    Lyttleton Fox (Ernest Rhea Early, of counsel), for respondent.
   Guy, J.

The plaintiff-landlord herein appeals from an order, based upon the verdict of a jury, dismissing its petition to remove the defendant-tenant for nonpayment of rent.

The non-payment of rent and other necessary proof required of the landlord were admitted; but the defendant interposed various counterclaims for damages alleged to have been suffered by reason of various alterations of the building during the term of the lease, and plaintiff’s negligence in connection therewith.

■ At the close of the case, plaintiff moved to dismiss all of defendant’s counterclaims, which motion was denied and an exception táken.

The seventh and eighth counterclaims are for damages caused by the negligent manner of performing work pursuant to an order issued by the public service commission in connection with the construction of the subway. The evidence shows clearly that this work was done by the Degnon. Construction Company, an independent contractor, over which company the plaintiff had no control, and for the acts of which it could not be held legally liable. The submission of these counterclaims to the jury was error, highly prejudicial to plaintiff, and must have largely influenced the jury in rendering a verdict in favor of defendant, which, in effect, was a finding that defendant had suffered damage under the various counterclaims submitted to them, in excess of the amount of rent due, $2,916.70.

As to the other counterclaims, they consisted principally of demands for damages caused by the negligent manner of doing work required by the municipal authorities, or repair work, which, under the provisions of the lease, the tenant was obligated to do, and which plaintiff undertook to do at the request of the defendant. As to these items, the proof as to negligence in the manner of doing the work and as to the extent of the damage thereby suffered by defendant is vague and inconclusive and not sufficient to support the jury’s verdict.

For these reasons the judgment and final order should be reversed and a new trial granted, with costs to appellant to abide the event.

Page, J., concurs; Whitaker, J., dissents.

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