Sixth Avenue Twenty-third Street Corp. v. Dane , 156 N.Y.S. 89 ( 1915 )

Page, J.

The trial judge erred in holding that the service of the precept was a sufficient demand for the rent. This error, however, was not prejudicial as a sufficient personal demand was proved. The exclusion of the evidence, of the alleged false and fraudulent representation in reliance upon which the tenant claimed to have entered into the lease, requires a reversal of the order. While the allegations of the answer are •somewhat inartificial, the facts being alleged as a defense and by way of counterclaim, and it not clearly appearing whether the statements alleged to have been made related to existing facts and hence a representation, or to future conditions and therefore a warranty, the evidence should have been admitted. If the evidence disclosed a false representation, the tenant could counterclaim his damages, although he could not set the matter up as a defense. Pryor v. Foster, 130 N. Y. 171; Driggs v. Hendrickson, 151 N. Y. Supp. 858. The cases cited were actions for rent, hut section 2244 of the Code of Civil Procedure makes such a counterclaim available in a summary proceeding.

Bijur and Shearn, JJ., concur.

Pinal order reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event.