#### William Jay, Executor and Trustee of Mary E. Field, Deceased, Plaintiff, *v.*Thomas Kirkpatrick, Defendant.

(Supreme Court, New York Special Term,

March, 1899.)

Counterclaim — Damages for a lessor’s breach of promise to repair cannot be set off against rent which accrued after her death.

Damages for a lessor’s breach of her promise to repair cannot ,be counterclaimed by her tenant against her testamentary trustee’s action for rent which accrued after her death, as the former claim is enforcir ble by the tenant only against personalty, while the rent, accruing after the death of the lessor, passes, through the trustee, to her heirs or devisees.

*551Demurrer to counterclaim.

Flamen B. Candler, for plaintiff.

James Flynn (E. H. Benn, of counsel), for defendant.

Russell, J.

Demurrer to counterclaim. The plaintiff sues for the sum of $1,333.33, the last month’s installment of rent due from the defendant upon the five years’ lease expiring Hay 1, 1898, made with the deceased testatrix. The defendant defends only by counterclaim, averring that the deceased during his occupation agreed, if he would allow repairs of some iron pipes, she would put on a new floor, and that he, consenting, suffered much loss and inconvenience in business in consequence of her acts under such agreement, and the violation of her obligation to lay down the new floor so that his injury exceeded the amount remaining due upon the lease to an amount stated, and demands not only a set-off but an affirmative judgment for the balance between the accrued rent and the sum of his loss.

The testatrix died the 18th of February, 1897, so that the defendant occupied for- more than fourteen months after her death, and presumably paid the rent except for the last month of the term. i *a*

By the lessor’s death the real estate leased went to her heirs or devisees. Thus was separated the beneficial interest in the future rent accruing from that already accrued. The value of the use and occupation, as fixed by the terms of the lease, came to those who received from the deceased lessor the real property demised as an incident to its ownership, and compensation for deprivation of possession. Executors of Van Rensselaer v. Executors of Plainer, 2 Johns. Cas. 17; Wright v. Williams, 5 Cow. 501; Fay v. Holloran, 35 Barb. 295.

The accrued rent goes to the executors or administrators. Code of Civil Procedure, § 2712.

If this were a claim for rent accrued at the time of the death of the testatrix the defendant might possibly recoup for his damages growing out of the subject-matter involved. But he could waive that right of recoupment by payment of the accrued rent, and still maintain a cause of action against the lessor’s estate. That right of action, however, is not a claim against the devisees or heirs, except in certain cases where there is an insufficiency of personalty *552to meet the obligation. Hence the right of action of the devisees or heirs for the rent, accruing subsequently to the death of the testatrix, is unclouded by a claim against the personal estate of the deceased, and the counterclaim alleged will not lie where such devisees or heirs seek to enforce payment due to them.

The plaintiff sues as execiitor and trustee. The designation as executor is immaterial if he shows the right to recover as devisee in trust. As such devisee in trust he is obliged to credit the sum sued for, if collected, to the trust devise for the benefit of the beneficiaries and cannot turn it into the personalty of the deceased. His right of action, therefore, cannot be nullified by a claim of the defendant which may be enforced against the executor.

The only hesitation I have had'in sustaining the demurrer has been upon the question as to whether the plaintiff has committed the first fault in pleading. The allegation of the devise to the executor in trust does not state the purposes of the trust so as to enable the court to judge as to whether it was a valid trust of real estate under our statute. If it was not, the demised premises went to devisees, or to heirs, who have the right of action for the rent. But the demurrer admits that the will devised the demised premises to the executor upon certain trusts. That may be held to be the admission of a fact and the sufficiency of the counterclaim may not be judged precisely under the same rules which pertain to other defenses where the counterclaim is in no shape available against the claim presented by the complaint. Demurrer sustained, with leave to amend on payment of costs.

Demurrer sustained, with leave to amend.