#### Johan J. Becker *et al.,*Resp’ts *v.*Walter S. Church,Appl’t.

*(Supreme Court, General Term, Third Department,*

*Filed November,*1886.)

1. Summary Proceedings — Answer in — Limited to denial op allegations CONTAINED IN PETITION — CODE ClV. PRO., § 2244.

One B. was, on July 5th, 1886, tenant from year to year of C. On that day a paper was executed between the parties, which purported to change such tenancy to a tenancy at will. This paper was obtained by fraud. In May, 18S3, 0. served a notice to quit on B., pursuant to the statute to terminate a tenancy at will, and proceeded to take summary proceedings thereunder to dispossess B. *Held,*that Code Civ. Pro., § 2244, allows a person against whom summary proceedings are taken, to put in an answer denying generally the allegations of the petition, or specifically any material allegation. The party answering is limited to denials, and there is no authority for affirmative allegations.

:2. Same — Fraud in obtaining a lease cannot be shown.

*Held,*That fraud in obtaining an alleged lease is not an issue to be tried in summary proceedings. Landon, J., dissenting.

3. Equity — Action to set aside instrument obtained by fraud will BE MAINTAINED.

*Held,*That an action in equity will be maintained to set aside and cancel an instrument affecting the title to land when obtained by fraud.

4. Same — Injunction.

*Held,*That as part of the remedy, actions or proceedings on the fraudulent instrument will be enjoined,

*W. & G. W.*Youmans, for resp’ts ; *Rosendale & Hessberg,*for appl’t.

Learned, P. J.

I assume for the present, that on and before July 5,1882, Becker was tenant from ye'ar'to year of Church; that on that day a paper was executed between the parties which purported to change such tenancy to a tenancy at will; that such paper was (as the referee finds, obtained from Becker by fraud.

Thereupon in May, 1883, Church served a notice to quit upon Becker pursuant to the statute to terminate a tenancy at will; and proceeded to take summary procedings thereunder to dispossess Becker.

Now upon those proceedings that paper would have been proof against Becker that he was such tenant at will. Could he in those proceedings have shown that that paper was obtained by fraud ? Is he therefore forbidden to maintain this action which is brought both to set aside and cancel that paper and also to restrain the summary proceedings ?

Now I suppose that an action in equity will be maintained for the purpose of setting aside and cancelling an instrument affecting title to land and obtained by fraud. Pomeroy’s Equity, sections 110, 899. Story’s Equity, sections 694, 700. Potter’s Willard’s Equity m. p. 304.

*98As part of the remedy actions or proceedings or the fraudulent instrument will be enjoin edi

But could the County Judge try the question of fraud in the obtaining the instrument ? • He has jurisdiction to pass on the legal title only, and not on an equitable title. *Terret v. Cowenhoven,*11 Hun, 320; *Ainslee v.*Howlett, 13 Hun, 138.

This latter case was affirmed 76 N. Y., 576. And the decision there (made by only four out of seven judges) goes to the point that the defendant by alleging facts showing that the so balled lease was void for usury, set up a defence that denied the conventional relation of landlord and tenant, and that such an issue should have been tried by a jury.

Now if we look at the Code, section 2244, it will be seen that the person against whom summary proceedings are taken may put in an answer, denying generally the allegations or specifically any material allegation. He is therefore limited to denials, and there is no provision for affirmative allegations. Suppose, .then, that the petitioner alleged a tenancy at will and the respondent denied it. On the trial of that issue, could the respondent have been permitted to show that the alleged lease was obtained by fraud, and was therefore voidable; not *void,*:as in a case of usury ? I find no case where it has been held .that any question,, such as here arises, can be tried in summary proceedings.

It seems to me then that, if the alleged instrument was obtained by fraud, as it affected Becker’s title to land, he might maintain an equitable action for its cancellation; and as a part •of the relief therein might restrain proceedings upon it. Nor -do I think that fraud in obtaining an alleged lease is an issue to he tried in summary proceedings.

As my Brother Bockes concurs with me in the former of these .two propositions, the judgment is affirmed with costs.

Landon, J.

This is an appeal from a judgment entered upon the report of a referee, granting an injunction restraining .the defendant from certain summary proceedings instituted by him to remove the defendants from certain premises in the town •of Berne, by reason of the expiration of the term of tenancy. .Four acres of the premises are the same which we have considered in the case of *Church*v. *Schoonmaker,*and were held by plaintiff subject to the rents reserved in the Post lease of 1795. The other portion consists of one acre adjoining the Post parcel. 'This acre had originally belonged to Stephen Yan Rensselaer, had been leased by him to one Kast, and in 1842 was by deed -conveyed by Kast to Van Rensselaer. At that date Paul Settle was occupying the Post four acres as tenant of Van Rensselaer End it .seems he went into possession of the Kast parcel as tenant hut without any written lease. The Post parcel was upon one *99side of a creek, and the Kast parcel on the other side, directly opposite. The Post parcel had been known and used as a mill lot; and when Paul Settle went into the occupation of the Kast parcel, he built a new mill upon the Kast parcel, and the old mill went to decay or was torn down. Thereafter both parcels were used in part as a mill lot.

The term of sixteen years mentioned in the Post lease of 1795, expired in 1811, but thereafter, without any written renewal of the lease, the Post parcel was occupied under the same terms as to rent until sometime before 1842, when the rent was raised to $60. After Paul Settle went into possession of both parcels he paid rent at the rate of $60 per year without any specification of the amount charged upon either parcel.

In 1851, Paul Settle conveyed his interest in both parcels to Edward Settle, who continued to occupy and pay the same rent; he paid rent in full “ on said lands,” as the referee finds, up to January 1, 1860. The referee finds that it does not affirmatively appear from whom Settle derived title to the Kast parcel, or by what tenure he held it.

It is apparent, however, from the facts found by the referee, that both Paul and Edward Settle held the Kast parcel under Van Rensselaer and as his tenant, and, further, that the rent of both the Kast and Post parcels was sixty dollars per year.

On the 27th of March, 1860, Edward Settle conveyed both parcels to the plaintiff by quit claim deed, both parcels being separately described, the Post parcel being subject to the rents in the Post lease, but no mention of tenancy being made with respect to the Kast parcel. The referee finds that, on the 5th day of July, 1882, the plaintiff did not know the amount of rents reserved in the Post lease and did not know that any rents were reserved upon the Kast parcel. The rent on the 5th day of July, 1882, had remained unpaid from January 1,1860. Church became the grantee of the Van Rensselaer title February 21, 1882.

In May following Church agreed to take, and the plaintiff agreed to give, $1,200. “ for all arrears of rent.” The plaintiff paid Church $1,008.75 upon this agreement July 5, 1882.

Upon these facts no question of adverse title or of champerty can arise. Becker by paying $1,008.55 upon “ all arrears of rent,” attorned to Church and admitted that he had held under the Van Rensselaer’s and now held under him. The plaintiffs’ quit claim deed was not inconsistent with the tenancy, and when rent was demanded of him he agreed to pay it and did. The referee does not find that the $1,008.75 was paid under a mistaken impression that it referred only to the Post parcel. The plaintiff testifies that when the $1,200 was agreed upon “ there was something said concerning that should be all the *100claim against tbe whole place.” The plaintiff also told Church that he would pay his rent thereafter, there would be no more trouble.” Since he was to pay rent thereafter, it probably did not occur to him that it made any difference whether he paid the $60 per year upon both parcels or.upon one of them.

We ought not, in support of the judgment, to presume that the referee found a fact which the evidence will not justify.

The referee has rejected as fraudulently procured the paper executed by the plaintiff at the time he paid the $1,008.75. This paper purported to change the tenancy from year to year to a tenancy at will. We see no reason to differ from the referee'in iiis finding of fact in this respect. The effect of it is to leave the tenancy from year to year existing in the same manner as if no paper had been executed. But such tenancy was not terminated by the service of the notice in May, 1883, requiring the plaintiff to quit the premises one month thereafter. Hence the summary proceedings could not be sustained. We have discussed the case on the merits because the case of Becker v. Church, herewith argued, requires it.

But this was an objection which could have been taken in the proceedings themselves. The invalidity of the paper purporting to change the nature of the tenancy could have there been litigated. The *People*v. *Howlett,*76 N. Y., 574. The court will not by injunction restrain summary proceedings unless the tenant has some equity or defence of which the county judge has no jurisdiction. *Knox v. McDonald,*25 Hun, 268; *Jessurun*v. *Mackie,*24 id. 624; S. C. 86 N. Y., 622; *Bradwell*v. *Holcomb,*4 Civ. Pro. Rep. 159.

Here all the facts insisted upon by plaintiff would have been competent as evidence in support of the issue before the county judge and if error had been committed, the remedy was by appeal.

The judgment should be reversed, new trial granted, reference discharged, cost to abide event.

Judgment affirmed with costs upon opinion of LEARNED, P. J. and Bocees, concurring.