S. Liebmann's Sons Brewing Co. v. De Nicolo

In proceedings to obtain possession of premises on default of payment of $833.33 rental for June to October, inclusive, 1904, Nicolo, designated as tenant, pleaded a general denial, Cutter, designated as undertenant, the like, and “for a further and distinct defense and by way of counterclaim” ^alleged that he was the tenant at a yearly rental of $2,000, which he had always paid promptly; that he had so become under a mutual agreement on April 30, 1904, whereby he was to sell the landlord’s beer only, and

Calling it so did not make the allegation a set-off, which may only arise when the demands of both parties are liquidated, or capable of being ascertained by calculation. Batterman v. Pierce, 3 Hill, 174 . It remained a counterclaim, which is a separate and distinct cause of action, balancing in whole or in part that proved by the plaintiff (Walker v. American Cent. Ins. Co., 143 N. Y. 169 , 38 N. E. 106 ), and was thus recognized by the learned justice, who remarked, “The counterclaim is allowed to stand as amended by the tenant.” Inasmuch as only defenses showing that the petitioner’s claim has not legal existence may be interposed in such a proceeding (Gay v. Riehmann M. Co., 53 App. Div. 507 , 65 N. Y. Supp. 964 ; Wulff v. Cilento, 28 Misc. Rep. 551 , 59 N. Y. Supp. 525 ), the denial of the motion was reversible error, an error later aggravated. When the petitionerrested, the proceedings as against Cutter were dismissed on motion of his counsel and on consent of counsel for the petitioner. As the first and chief witness there came Cutter, who was allowed to testify respecting most of the things set up in his “further and distinct defense,” particularly as to the issuance to him of the liquor tax certificate, and to its subsequent seizure. The evidence thus erroneously admitted tended to distract the jury from the one issue whether Nicolo was a tenant in possession, to prejudice by an appearance of harsh action toward Cutter, and to justify a contention, made below and on this appeal, that the issuance, under the circumstances testified to, of a license to Cutter, estopped the petitioner from asserting the tenancy to be in anybody but Cutter—a contention which the certificate was not evidence to support (Furey v. O’Connor [Sup.] 85 N. Y. Supp. 324 ), but which the learned justice adopted in a part of his charge made on request of the tenant’s counsel and excepted to by counsel for the petitioner. These errors suffice for reversal, without considering the paucity of evidence given for the tenant, if any were left after Nicolo and Cutter were confronted by their contradictory declarations-, or animadverting upon the incongruity of the defense which began by a proffer- to the petitioner on Cut

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