#### The Durant Land Improvement Company, Appellant, *against*The East River Electric Light Company, Respondent.

(Decided July 22d, 1889.)

In summary proceedings by a landlord against a tenant to recover possession of the demised premises after default in payment of rent, a counterclaim cannot be pleaded, nor can the tenant plead as a defense the failure of the landlord to perform a covenant to alter, enlarge, rebuild, or repair the premises. The only answer he can make is a general denial, or a denial of some specific allegation of the petition. And, under a denial of the averment in the petition that rent is due and that he has made default in payment thereof, he may prove payment, or that, for any other reason, no rent is due; or he may claim the benefit of a clause in the lease providing for an apportionment of the rent for the time that he has been deprived of the enjoyment of a part of the premises by the making of alterations and repairs by the landlord.

It is not a defense to such a proceeding that the landlord demanded the full amount of the rent stipulated, when only a portion thereof was payable. A tenant is in default, if, when demand is made, he does not pay what is due, whether it be the sum demanded by the landlord, or less or more.

Appeal from the District Court in the City of New York for the Eighth Judicial District.

The facts are stated in the opinion.

*C. J. Hardy,*for appellant.

*Leonard A.*Giegerich, for respondent.

Per Curiam.

[Present, Van Hoesen and Allen, JJ.]—. A counterclaim cannot be pleaded in summary proceedings, nor can a tenant plead as a defense the failure of the landlord to perform a covenant to alter, enlarge, rebuild, or repair the demised premises. Chief Justice McAdam has collected, in *338the second edition of his work on Landlord & Tenant, p. 644, some of the authorities on this subject. The only answer that the tenant ca^n make is a general denial, or a denial of some specific allegation of the petition. In his note on page 642 of the second edition of his work, Chief Justice MoAdam falls into the error of saying that payment of the rent could not be proved under a denial.- In this he is mistaken. The landlord, if he proceeds because of the nonpayment of rent, is bound to allege in his petition (Code Civ. Pro. § 2231), that rent is due, and that the tenant has made default in the payment thereof. Under a denial of that averment, the tenant may prove payment, and thus show that he is not in default, and that no rent is due. If for any other reason no rent be due and payable, the tenant may, under a denial, prove that he is not in default in the payment of his rent. In *People*v. *Howlett*(76 N. Y. 574), under a denial, the tenant could have proved that the relation of landlord and, tenant did not exist, for the reason that the so-called lease was only a shift to cover an usurious agreement for the loan of money, and therefore was utterly void; but the court said that, in addition to a-denial, the tenant had pleaded the facts that showed the lease to be void for usury, and that no harm had been done by such a pipa.

The answer of the tenant in this case violates the rules that; govern pleadings in summary proceedings. The third, fourth, fifth, sixth, seventh, and eighth paragraphs, which were intended to set up separate defenses, are, each and every of them, bad in substance, and they present no defense. They amount to nothing more than a series of allegations that the landlords have failed to perform various covenants that they had bound themselves by the lease to perform. If these allegations were all true, they constituted no answer to the landlord’s claim for rent. But, under the denials of the answer, the tenants could claim the benefit of that clause in the lease that provides for the apportionment of the rent for the time that they were deprived of the enjoyment of a part of the demised premises in consequence of the making of alterations and repairs by the landlords. The lease provides *339that if the landlords, in malting alterations or repairs, excluded the tenants from the enjoyment of any part of the premises, “the rent reserved, or such part thereof as shall be justly proportionate to the portion or portions of the said demised premises of the use of which the said party of the second part (the tenants) shall be deprived by reason of the control of said premises by said party of the first part (the landlords), shall be suspended or abated.” If the acts of the landlords had entirely prevented the tenants from any use of the demised premises during the period for which rent was claimed, the tenants could have shown, under a denial that by the terms of the lease no rent at all was due and payable.

But it was not a sufficient answer to these proceedings to show that the full amount of the stipulated rent was not payable. The law is that if any rent whatsoever is due, it must be paid if the tenant wishes to retain his lease. The landlord does not fail if he demands more than is his due, though he can recover no more than he is. entitled to. It has never been the law that a plaintiff should be turned out of court without redress because he claimed more than the court considered to be rightfully his. A tenant has no right to retain possession when he confesses or when it is proved that he is in default in the payment of any part of his rent. In a case like this, where the amount that he is to pay can only be ascertained by agreement, or, that failing, by a judicial decision as to what is the fair proportion of the rent that he ought to pay, he is bound to appeal to the courts for an adjudication as to his liability if his landlord claims from him more than he concedes to be due. It was proved that the landlords, in compliance as well with the request of the tenants as with the provisions of the lease, did make certain alterations and repairs, and that the doing of the work did deprive the tenants of the beneficial enjoyment of a part of the demised premises. From this it results that the tenants are relieved, by the terms of the lease, from paying any more than a fair proportion of the rent. But it does not follow that they are relieved from paying any rent whatever. Some *340rent is due, and in arrear, and this being so, the landlords are entitled to a final order in their favor *(Jarvis*v. *Driggs,*69 N. Y. 147). If the tenants wish to be relieved of their default, they must tender what is due, and if that cannot be ascertained without a judicial inquiry, they must appeal to the courts to determine the amount.

It is idle to argue that a tenant is not in default until the landlord has demanded the exact sum that is due. He is in default if, when demand is made, he does not pay what is due, whether it be the sum that the landlord demands, or less or more.

Though we do not concur in all the reasoning of Judge Daniels in *Kelly*v. *Miles*(48 Hun 16), we think that the conclusion that he reached is equitable and satisfactory, and that he has-correctly defined the respective duties of landlord, and tenant in-cases of this description.

We think that the final order should- be reversed.

Order reversed.