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Schaffer v. Fihrer

133 N.Y.S. 921 Court Argued February term, 1912, before SÉABURY, GUY, and BI-JUR, JJ. Decision date 1912-03-08 English

Delivered by SEABURY, J.

Contents

Majority

p. 921
SCHAFFER v. FIHRER.
(Supreme Court, Appellate Term.
March 8, 1912.)

Headnote

Courts (§ 189[1] )—Municipal Court—Disposition of Counterclaim.
Under Municipal Court Act (Laws 1902, c. 580) § 230, requiring the court upon issue joined to decide all questions of fact and law and render judgment accordingly, the failure of the Municipal Court to make any disposition of a counterclaim for rent in an action by a sublessee for damages for eviction was reversible error.
[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412; Dec. Dig. § 189.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Nahum Schaffer against Rebecca Fihrer. From a judgment of the Municipal Court of the City of New York in favor of the plaintiff, defendant appeals.
Reversed, and new trial ordered.
Argued February term, 1912, before SÉABURY, GUY, and BI-JUR, JJ.
Samuel Dickstein, for appellant.
Goldstein & Goldstein, for respondent.

The only question requiring discussion upon this appeal relates to the failure of the court below to consider the defendant’s counterclaim. The action was brought to recover damages sustained by the plaintiff by reason of his having been evicted by one Perlman. It appears that Perlman owned the premises in question, and that the defendant was his tenant at will, and that the defendant leased the premises under a monthly tenancy to the plaintiff. The plaintiff was dispossessed by Perlman because of defendant’s failure to pay rent. The answer was in effect a general denial and a counterclaim for $30 for one month’s rent due from the plaintiff to the defendant. This rfent accrued before the plaintiff was evicted. The court having failed to make any disposition of the counterclaim, the judgment must be reversed. Municipal Court Act, § 230; Bellock v. Weitzer, 144 App. Div. 292 , 129 N. Y. Supp. 178 ; Rosenberg v. Aldhaus, 132 N. Y. Supp. 369 .

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.