Wulff v. Cilento — 28 Misc. 551

Majority

p. 551

John H. Wulff et al., Respondents, v. Luigi Cilento, Appellant.

(Supreme Court, Appellate Term,

July, 1899.)

Headnote

1. Summary proceedings — Counterclaim good as a defense, but not for a money judgment.

Under section 2244 of the Code of Civil Procedure, as amended by chapter 705 of the Laws of 1893, a tenant may, in summary proceedings, interpose a general denial and counterclaim as defenses to the landlords’ claim of possession, but he can obtain no affirmative money judgment on his counterclaim.

2. Same — Incorrect notice of appeal.

Although a tenant’s notice of appeal mistakenly describes a final order, in summary proceedings, as a judgment, the appellate court will treat the appeal as one from an order where it has been so treated by the attorneys for the respondents.

Appeal by tenant from an order, called by him a judgment, of the Municipal Court of the city of Hew York, seventh district, borough of Manhattan, entered in favor of the landlords, “ awarding to the said landlords the delivery of the premises within described by reason of the tenant’s non-payment of said rent.”

p. 552

Joseph I. Green, for tenant-appellant.

Martin & Weil, for landlords-respondents.

In this proceeding, the statutory and ordinary one to dispossess a tenant, the petitioners sought to oust their tenant for non-payment of rent, and were met by a verified answer containing a general denial and a counterclaim for damages alleged to be the result of a breach of the contract of lease. At the close of the trial the justice granted a final order awarding possession of the premises to the landlords, and denied relief to the tenant, apparently, because the proceeding being special and solely for possession, a money judgment might not be rendered either way. It is contended, however, by the tenant upon this appeal that he was entitled to an affirmative money judgment because section 2244 of the Code of Civil Procedure, as amended by the Laws of 1893, chapter 105, in terms not only permits the interposition by verified answer of a general denial and counterclaim, but also provides that such defense or counterclaim may be set up and established in like manner as though the claim for rent were the subject of the action. As was observed by Mr. Justice Bookstaver, in Constant v. Barrett, 13 Misc. Rep. 249 , 250: “ This amendment was apparently made to meet some special emergency, and without any regard to the general scheme adopted in summary proceedings.” This explanation is plausible and probable, for, by section 2249, the final disposition of such a proceeding, whether tried by the court with or without a jury, is limited to a final order awarding possession to the petitioner or to the answering person, as the case may be. Viewed in that relation, the allegations and proof authorized by section 2244 may not be extended beyond defenses to the possession, for which alone this proceeding is brought. For this reason, the final order should be affirmed, with costs to the respondents.

By mistake, the notice of appeal is from a judgment apparently neither rendered nor entered; but, as it refers to and adopts the language of the final order, it may fairly be held to be, as seemingly understood and treated by the attorneys for the respondents, an appeal from the final order entered herein. Van Ingen v. Snyder, 24 Hun, 81 , 83.

Freed max, P. J., and Leventritt, J., concur.

Order affirmed, with costs to respondents.

Cases cited

Constant v. Barrett 13 Misc. Rep. 249 N.Y.C.P. 1895-06-03 at 250 p. 552