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Hudson v. Tarlton

53 N.Y.S. 552 Court General Term. Decision date 1898-08-06 English

Delivered by SCHUCHMAN, J.

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p. 552
HUDSON v. TARLTON.
(City Court of New York,
General Term.
August 6, 1898.)

Headnote

Counterclaim:—Action for Rent.
In an action for rent, a counterclaim based on the landlord’s failure to repair, which does not allege a covenant on his part to make repairs, is demurrable.
Appeal from special term.
Action by John Hudson, as trustee, against John J. Tarlton. From an interlocutory judgment overruling a demurrer to defendant’s counterclaim, plaintiff appeals.
Reversed.
Argued before SOHUCHMAN and OLOOTT, JJ.
J. Vincent, for appellant.
J. H. Hildreth, for respondent.

The complaint sets up a cause of action for rents for January, February, and March, 1898, for a store and cellar. The answer admits the cause of action set forth in the complaint, and alleges, by way of counterclaim, damages arising to the use and occupation of the said premises for the month of November, 1897. It does not allege a covenant on the landlord’s part to repair. The answer therefore does not contain a good cause of action by way of counterclaim. Reissman v. Jacobwitz, 22 Misc. Rep. 551 , 49 N. Y. Supp. 1006 .

Judgment appealed from reversed, with costs, and demurrer to counterclaim sustained, with costs to plaintiff.

OLCOTT, J. I concur in the'result, upon the authority of Edger-ton v. Page, 20 N. Y. 281 , and Romaine v. Brewster (Com. Pl.) 10 Misc. Rep. 120 , 30 N. Y. Supp. 948 .

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