Gay v. Riehmann Mantel Co.

answer verified in like manner as a verified answer in an action in the supreme court, denying generally the allegations or specifically any material allegations of the petition, or setting forth a statement of any new matter constituting a legal or equitable defense or counterclaim. Such defense or counterclaim may be set up and established in like manner as though the claim for rent in such proceeding was the subject of the action."

It is the contention of the plaintiff that under this section the defendant had a right in the summary proceedings to set up and plead its counterclaim for damages, and that, having failed so to do, it is barred from pleading the same in this action, and that the final order and judgment in the summary proceedings was res adjudicata and conclusive upon the parties. The petition in the summary proceedings instituted by the plaintiff, which in all things complied with the provisions of the Code, did not demand a judgment for rent against the defendant, or ask to have the amount of rent due adjudicated or determined. It simply asked for a final order removing the tenant from the premises, and that was the only relief to which the plaintiff was entitled in that proceeding. Section 2235 of the Code of Civil Procedure prescribes who may make such petition, the facts which must be alleged to entitle the petitioner to relief, and prescribes the relief which may be obtained, to wit, "a final order to remove him or them accordingly." Section 2249 of the Code provides the scope of the final order or determination to be made by the court in such proceeding. It provides that, if the decision of the judge or justice before whom such proceeding is pending is in favor of the petitioner such, "judge or justice must make a final order awarding to the petition the delivery of the possession of the property. * * * If the verdict or decision is in favor of the person answering, the judge or justice must make a final order accordingly, and awarding to him the costs of the special proceeding." In none of the provisions of the Code re

Gay v. Riehmann Mantel Co.

lating to such proceedings is provision made for rendering or giving judgment in favor of the plaintiff for the amount of the rent due; nor is there any authority under the sections of the Code for rendering a money judgment in favor of the defendant, unless it may be found in section 2244 above quoted. The law relating to the municipal court of Buffalo, as amended by chapter 101 of the laws of 1898, cannot aid the plaintiff's contention, as the final order clearly does not comply with the provisions of that law, in that it does not specify the amount of rent due. We think section 2244 cannot be so construed as to require a defendant to plead and litigate in summary proceedings any counterclaim which he may have, arising out of the relation of landlord and tenant of leased premises, and permit the recovery of a money judgment thereon, when the petitioner, as we have seen, is not permitted under the Code to recover judgment for the amount of rent due. The reasonable construction of section 2244 is that it only authorizes such defenses to be interposed as might defeat the petitioner's right to the possession of the premises, for which alone such summary proceeding is brought, or permitted by the Code, This was held to be the meaning of the section by the appellate term of the supreme court in Wulff v. Cilento, 28 Misc. Rep. 551, 59 N. Y. Supp. 525. In that case, as in this, the petitioners sought to oust their tenant for non-payment of rent, and were met by a verified answer containing a general denial, and a counterclaim for damages alleged to be the result of a breach of the contract of lease. A final order was made, awarding possession of the premises to the landlord, and denying relief to the tenant under its counterclaim, upon the ground that, the proceeding being special and solely for possession, a money judgment might not be rendered either way, and the final order so made was affirmed. In Constant v. Barrett, 13 Misc. Rep. 249, 34 N. Y. Supp. 163, the same question was passed upon by the general term of the New York common pleas; and it was held that the amendment

Gay v. Riehmann Mantel Co.

to Section 2244 of the Code of Civil Procedure, whereby the tenant was allowed to set up a statement of any new matter constituting a legal or equitable defense or counterclaim, was made to meet some special emergency, and without any regard to the general scheme adopted in summary proceedings, and it was said by Mr. Justice Bookstaver, in writing the opinion of the court, "There is no provision anywhere for special verdicts or findings by the court or jury, and nothing authorizing a decree adjusting or enforcing the equities between the parties."

The conclusion is reached that, in summary proceedings instituted for the purpose of obtaining possession of leased premises because of the failure on the part of the tenant to pay rent, a failure on the part of the tenant to plead a counterclaim in such proceeding, arising on account of a breach of the contract of lease by the landlord, does not preclude the tenant from pleading such counterclaim in an action brought to recover the amount of rent due, and obtaining judgment therefor against the landlord. It follows that the judgment appealed from should be affirmed, with costs.

Judgment affirmed with costs. All concur.

Note Summary Proceedings-Answer.-The answer must be verified, a counter affidavit cannot be accepted. Yuelin v. Meade,, 1 Civ. Pro., 446. See note to this case foot of pages 446 and 447.

Adjournment..-Summary proceedings pending in a district court in the city of New York may be adjourned both before and a ter answer by the clerk in the absence of the justice.

An answer may be received on the last adjourned day though not filed before. Deutermann v. Wilson, 15 Civ. Pro., 411.

Under section 2244 of the Code of Civil Procedure as amended in 1893 a tenant may plead in summary proceedings an equitable defense which will defeat the proceedings in whole or in part, but he cannot obtain any affirmative relief against the landlord, and the tenant where he is entitled to affirmative relief instead of pleading his equitable defense or counterclaim may invoke the aid of a court

Matter of Application of Theodore B. Gates.

of equity at once, and where he does so the court of equity will enjoin the summary proceedings instituted by the landlord until the determination of the action. Rogers v. Earle, 23 Civ. Pro., 220.

The provisions of section 2244 of the Code of Civil Procedure permitting the interposition of a counter claim in summary proceedings "in like manner as though the claim for rent in such proceeding was the subject of an action" do not extend to a claim by the tenant for damages sustained by reason of a conversion of chattels by his landlord. Burrell v. Do Sim, 24 Civ. Pro., 243. See note and cases cited at foot of page 244.

A counter claim against the landlord personally may not be interposed in a summary proceeding brought in the capacity of a guardian. Gallagher v. Brew'g Co., 25 Civ. Pro., 106.

An answer in summary proceedings to recover possession of demised premises must deny generally the allegations or specifically any material allegaton of the petition or setting forth a statement of any new matter constituting a legal or equitable defence of counter claim. Collender v. Smith, 26 Civ. Pro. 318; s. c. 20, misc. 614. See also the following cases: Abeles v. Benoliel, 3 Law Rec., 128; Bien v. Bixby, 18 Misc., 415; Wulff v. Cilento, 28 Misc., 551; Matter of McCormick, 30 Misc., 285; Neusberger v. Prodelefsky, 64 N. Y., Sup., 131.

IN THE MATTER OF THE APPLICATION OF THEODORE B. GATES, AN ATTORNEY &C., TO ENFORCE HIS LIEN, v. SAMUEL II. COOMBS, AS ASSIGNEE OF WALTER T. CLOTS & BROTHER'S SONS.

SUPREME COURT-APPELLATE

DIVISION SECOND De

PARTMENT, MAY TERM, 1900.

$ 66.

Attorney's lien.-What constitutes "proceeds of judgment."

An attorney's lien attached upon the rendition of a judgment. The language of section 66, Code of Civil Procedure, is very comprehensive and creates a lien in favor of the attorney on his client's cause of action in whatever form it may assume in the course of the litigation, and enables him to follow the proceeds into the

Matter of Application of Theodore B. Gates.

hands of third parties without regard to any settlement before or after judgment.

(Decided May, 1900.)

Appeal from an order made at Special Term, Kings County, on the 26th day of February, 1900, directing the said Samuel H. Coombs, as assignee, to pay to said Theodore B. Gates $90, the amount realized by said assignee upon the sale of certain judgments on which said Gates. had an attorney's lien for costs.

J. A. Burr (Robert H. Wilson with him on the brief) for appellant-assignee.

Theodore B. Gates, in person, for respondent.

JENKS, J.-The respondent, an attorney, recovered certain judgments for clients who subsequently made a general assignment for the benefit of their creditors. The attorney moved that the assignee pay his claim for services in gaining such judgments, or that he, the attorney, be authorized to enforce the payment of the costs of the judgments in satisfaction of his lien in each case. The special term, on April 18, 1899, ordered that the attorney for the assignee "having stipulated in open court to commence, within a reasonable time, proceedings supplementary to execution upon the various judgments set forth in the exhibits attached to said petition and to pay to the said Theodore B. Gates out of each one of the judgments so collected the costs of said Theodore B. Gates included in each judgment so collected," the motion be denied. On November 9, 1899, the assignee gave notice of the sale of a number of judgments recovered by his said assignors, including those in question, and in that notice stated that these particular judgments were sold subject to any claim of Theodore B. Gates for attorney's liens for costs. These particular judgments were sold subject to any claim of