#### Henry A. W. Wood, Resp’t, *v.*Edward Gordon, App’lt.

*(City Court of New York, General Term,*

*Filed March 10, 1891.)*

1. Pleading—Counterclaim—Reply.

When the new matter as set forth in an answer approaches too closely the boundary line between new matter constituting an affirmative defense and new matter setting forth a counterclaim, the pleader must label his plea if he desires a reply without an order of the court; a prayer for affirmative relief is not sufficient to force a reply.

2. Lease—Mistake—Reformation.

In an action against the defendant as a hold-over tenant, he claimed that his lease was to be for twelve and a half months to October i, 1890, instead of September 15th, as stated therein. He testified that he signed the lease without reading it after stating that he would take the premises for a year, or to September 15th, and subsequently said to plaintiff’s agent: “My term is still twelve and a half months,” and that the agent replied in the affirmative and showed him an endorsement on the lease to that effect. This was denied by the agent. *Held,*that the evidence did not justify a reformation or modification of the lease, and that a direction of a verdict for the plaintiff was correct.

*456Appeal from judgment in favor of plaintiff, entered on verdict directed by the court.

*Charles De Hart*Brower, for pl’ff; *James P.*Campbell, for deft.

Van Wyck, J.

This is an appeal by defendant from a judgment entered upon a verdict directed against him by the court. The action was against defendant, as tenant holding over after the expiration of his term as fixed in a written lease under seal, which Contained the following recitals, that the premises are let “from September 15, 1889, to September 1, 1890;” to pay “said yearly rent” and “ on paying said yearly rent.” Upon the back of the lease is endorsed : “Henry A. Wise Wood to Edward Gordon. Lease, dated August —, 1889. Term, twelve and one-half months; begins September 15, 1889, terminates September 1, 1890; annual rent, $600.”

The answer denies all the allegations of the complaint, and, among other things, affirmatively alleges that the written lease which was signed by defendant was drawn and prepared by plaintiff’s agent, who, at the time that it was signed by defendant, stated to him that it was a lease for the term of twelve and a half months, and that upon such assurance he accepted the lease, occupied the premises, and paid the rent, and the answer prays that any written instrument, expressing any different term of hiring, be modified so as to express the real agreement. At the opening of the trial defendant moved for judgment on the pleadings; upon what ground does not appear from the record, but his points indicate that it was for failure of plaintiff to reply or demur to the answer. This motion was properly denied. It seems safe to say that a rule has been established, which requires that when the new matter as set forth in an answer approaches too closely the line, by no means distinctly visible at all times, called the boundary line, between new matter constituting an affimative defense and new matter setting forth a counterclaim, the pleader must label his plea, if he desires or expects a reply without an order from the court, and so, too, it is held'that the defendant’s prayer for affirmative equitable relief will not alone be sufficiently explicit to force a reply, but that he must characterize his plea as a counterclaim before he can success- . fully complain of the plaintiff’s failure to demur or reply. This rule, which is enforced against the defendant to prevent his technical effort for judgment without trial, will be turned to his aid when he is met at trial by the plaintiff’s objection to his giving proofs of his allegations in order to secure his affirmative equitable relief, for he will then be allowed to make such proof and obtain such relief, notwithstanding that he has not labelled his plea as a counterclaim.

Another complaint from this defendant is, that he was not allowed to go to the jury. The trial judge was very considerate of defendant’s interest and allowed him to give evidence to substantiate his contention, and, after hearing him, assumed control of the case and properly directed a verdict against him. Mr. Brower, *457who is the person alleged in the answer to be the agent by whom the lease was drawn and prepared, testifies that he was the plaintiff’s agent in the management of this house and two others; that he drew and prepared the lease in question; that he did not have authority to sign it for plaintiff, who signed it in person, and handed it to him to deliver to defendant. If "this testimony should be absolutely eliminated from the case, all evidence of authority by Mr. Brower to act for plaintiff would disappear, and if allowed to stand it would prove affirmatively that he had no authority to sign the lease, and, of course, none to alter or modify it; and if he had done so in writing and by express terms it could not avail the defendant in the absence of knowledge by plaintiff.

An examination of defendant’s testimony had best be made by quoting from it quite fully. The defendant says that he saw Mr. Brower but twice, first on September 3, 1889, and again on 11th of the same month, and continues: “ Upon the 3d of September, I called upon Mr. Brower * * * and told him I was the party who had rented the flat * * * then he (Brower) produced a form of lease dated August 15, 1889, to run to September 1, 1890; it was to run from August 15, 1889, to September 1, 1890. I said to Mr. Brower, that I had not rented the flat from Mr. Judge for that term, that I had taken the lease of it for one year from September 15,1889, to September 15,1890. Mr. Brower said, You had better let me give it to you from the first. I said No, sir, my rent is paid where I am occupying until September 15, and I will take from September 15 to September 15; he said: All right; I will have the lease altered to that effect.” So it comes from defendant’s own lips that his understanding was that his term was to expire on September 15, 1890, and yet he does not vacate the premises until September 30, fifteen days after the term was to expire, as he originally understood it, and now he seeks by what in nature is a suit in equity to reform the lease by having it read so as the term will have expired not on September 15, but on October 1, 1890, one day after he vacated the premises. The defendant continues in his testimony, “ and the next interview I had with him (Brower) was upon the 11th of September, when I went to his office and laid my check for fifty dollars upon his desk, and said there is the first month’s rent; I then without looking at the lease, I then signed the lease.”

Taking the defendant’s testimony as true down to this point, it would follow that he then thought he had signed a lease without reading it, which made his term for *twelve*months, that is from September 15,1889, to September 15, 1890, and had paid his rent for the first month. The defendant’s testimony continues: “After I had the lease signed, Mr. Brower said, Mr. Gordon, I make it a practice to collect all mj^ rents upon the first of the month, so that I can have matters straightened out by the 15th, and make my returns promptly ; I would like if upon the 15th of October you will send me your check for $25, which is for a half month’s rent; I said, Mr. Brower, that would still constitute that half; he said, Yes, that would still constitute that half month; I said to him, My term *458is *still twelve and a half months,*is it not? he said, Yes.” It appears from his testimony that a moment before when he signed the lease he thought it had been drawn in accordance "with his instructions of September 3d, and that his term was for *twelve*months. Defend- ' ant’s testimony continues : “I then picked up the lease and looked at it and said, that is not stated here; then he called my attention to the back of the lease and said; But it is so stated there; this is simply an agreement or paper which forces you to keep the flat for not less than one year.” Of course all of this is denied by Mr. Brower. The defendant certainly has not made out a case which would justify either court or jury in determining that he was entitled to have the written lease so modified or reformed as to read that the letting and hiring was for a term of twelve and a half months, *i. e.,*from September 15, 1889, to October 1,1890, instead of a term from September 15, 1889, to September 1, 1890, as is expressly recited in the lease. The defendant admits that he held and occupied the premises until September 30, 1890, which was thirty days after the term provided for in the lease had expired, and hence was what is called a hold-over tenant, and, upon the landlord’s election, is liable for the month’s rent of fifty dollars sued for.

Judgment affirmed, with costs.

Ehrlich, Ch. J., concurs.