Majority
p. 299Provost v. Donohue. (Supreme Court, General Term, Second Department. December 13,1888.) Argued before Barnard, P. J., and Dykman and Pratt, JJ.
Headnote
1. Landlg d and Tenant—Recovery op Possession—Pleading—Answer. 1In sy nmary proceedings to recover real property by one claiming as landlord it is erroi to strike out an answer alleging that the identical subject-matter as stated in the \ etition had been brought and tried before a justice of the peace, whose judgmei t in defendant’s favor was still in force and unsatisfied.
2. Same—Di jial of Relation—Adverse Claim.
Defendant, besides denying that the relation of landlord and tenant exists, may' show that his occupancy is that of an equitable owner under a certain agreement • with the plaintiff.
Appeal from Queens county court.
Summary proceeding, brought by John C. Provost, as landlord, against • Thomas F. Donohue, as tenant, to recover possession of real property in Long" Island City for non-payment of rent. The answer to the petition “(1) denies ■ each and every allegation therein contained. (2) Alleges that no relation of landlord and tenant exists between the said John C. Provost and said Thomas ■ F. Donohue in respect of the premises described in the petition herein; that this respondent is in possession of and using and occupying said premises as the-equitable owner thereof under and pursuant to an agreement with said Pro- ■ vost for the redemption thereof from sale under foreclosure, and the payment • to the said Provost of the moneys, interest, and costs represented in the said foreclosure proceedings, such payment to be made out of the moneys to be ■ realized from a sale for the benefit of this respondent, and to be applied to the ■ redemption of the property described in these proceedings, and which agreement of sale the said Provost unjustly and illegally neglects and refuses to ■ complete or perform, respondent being willing and able, as soon as the said Provost completes and fulfills the aforesaid agreement, to pay and satisfy to • him, said Provost, all claims and demands accruing out of the transaction ■ and agreement mentioned above in respect to the premises described herein. And for a further answer the said Donohue alleges that heretofore the iden- ■ tical subject-matter, as stated in said landlord’s petition, was brought before • Michael Delehanty, Esq., a justice of the peace in and for Long Island City, by precept, returnable before said Delehanty on the 5th day of April, 1883, and which proceedings were then and there adjudged in favor of the■ said tenant, and by a final order therein made and entered by said justice in-favor of the said tenant and against said landlord, under the statute; and that ■ said order, together with the costs adjudged to said tenant pursuant to stat- ■ ute, still remains of record, unsatisfied and unreversed, as will more fully appear by said record and proceedings.” All of this answer after the first sentence in the second paragraph, denying that the relation of landlord and tenant' existed in respect of the premises, was stricken out on motion of the land-lord. The jury returned a verdict in favor of the landlord, upon which final-order was entered May 2, 1888, and the tenant appeals.
S. B. <£• B. Noble, for appellant. L. N. Manley, (George A. Stearns, of counsel,) for respondent.
The evidence in this case is ample to sustain the verdict of the jury, and the only questions raised relate to the rulings of the judge who presided at the trial. There are many exceptions, but the decision must turn upon the question whether the portions of the answer stricken out, and the-
p. 300
items of evidence excluded, constituted any defense to the plaintiff’s claim. 'That the plaintiff was the owner of the premises, that they were occupied by the defendant, and that there was a failure to pay for use and occupation, :there is no dispute. It is also clear that if there was any renting that the rent reserved was at the rate of $20 per month. We think it was error to strike out the answer of the defendant. Among other matters the defendant •alleged that the identical subject-matter, as stated in the plaintiff’s petition, had Jieen brought and tried before a justice of the peace of the county wherein the premises were situated, which resulted in a judgment in favor of the defendant, and that the same was in force and unsatisfied. This matter was ■sufficiently pleaded, and, if proved, would constitute a bar to plaintiff’s proceeding. The defendant also set up an agreement whereby he claimed to occupy the premises, to the effect that his occupancy was that of equitable -owner, and that he was to pay all claims and demands of the plaintiff out of moneys accruing from a sale of the property agreed to be sold by the plaintiff. There may be some question whether this part of the answer is sufficiently -definite and certain to raise an issue, but this point was not raised by the plaintiff. Where a party alleges an agreement, and the terms are set out, the law presumes it a valid agreement, i. e., if the matter relates to real estate; and to be valid it must be in writing. In the absence of any statement that it is verbal merely, the law presumes it is in writing; so that, taking the pleading as it appears on record, the defendant pleaded facts utterly incon- • sistent with the plaintiff’s allegation that defendant was his tenant at an • agreed rent of $20 per month. It is true that the issue in this class of cases is whether there exists the relation of landlord and tenant, and the amount of rent due; but in contesting this issue a dependent is not restricted to a mere denial of the tenancy, but he may prove any fact having a direct tendency to •disprove the allegations of the petition. The plaintiff was permitted to state what conversations he had with the defendant about the latter’s occupancy of the premises, and it is difficult to see why the defendant was not allowed to • state his version of what took place in reference to the same matter. What 'the defendant attempted to allege and prove was not strictly an equitable defense, but a denial and rebuttal of the plaintiff’s petition and proof. If these views are correct, it follows that the judgment must be set aside. Judgment rreversed, with costs. All concur.