Misc.]

Supreme Court, Appellate Term, May, 1911.

having moved to vacate a judgment entered against him upon the ground of non-service.

The report of the referee assumes to determine the issue which was submitted to him only for the purpose of taking proof and making a report.

The order appealed from, however, shows that the court regarded the reference merely as a report; and, since there is sufficient competent evidence adduced to sustain the court's determination that the defendant was actually served, we cannot disturb this finding.

The order also adjudges that the defendant Wiesenfeld should pay all the costs of the reference which amount to two hundred and ninety-three dollars and seventy-five cents and seventy-five dollars allowance to the attorney for the respondents and the fees and the poundage of the sheriff and keeper's fees, and adjudges that, if the defendant fails to comply with the provisions of this order, he shall "be and he hereby is adjudged guilty of contempt of this court." This last clause was wholly unauthorized and illegal, nor is there any authority for the allowance of seventy-five dollars, which was made to the attorney.

The order is modified by striking out the clause requiring the defendant Wiesenfeld to pay seventy-five dollars to the attorney for the respondents and adjudging the defendant guilty of contempt and as modified is affirmed, with ten dollars costs and disbursements to the appellant, which may be offset against the costs which the order directs the defendant Wiesenfeld to pay.

LEHMAN and GERARD, JJ., concur.

Order modified, and, as modified, affirmed.

Supreme Court, Appellate Term, May, 1911.

[Vol. 72.

MORITZ SAFRAN, Appellant, v. NATHAN SILVERMAN, Respondent.

(Supreme Court, Appellate Term, May, 1911.)

In an action for rent, the tenant cannot counterclaim treble damages for the landlord's forcible entry and detainer of the demised premises during the term.

APPEAL by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the defendant.

Louis S. Posner (Harry G. Anderson, of counsel), for appellant.

H. M. & S. Solomon, for respondent.

LEHMAN, J. The plaintiff was the landlord of certain premises occupied by the defendant under a lease expiring on the 1st day of February, 1911. The defendant moved his place of business from plaintiff's premises in November, 1910, and then requested and received permission from the plaintiff to sublet the premises until the expiration of his lease. On the first day of December he had not yet subleased the premises and he paid his rent for that month. The landlord alleged in his complaint that thereafter the plaintiff and the defendant entered into an agreement whereby the defendant requested the plaintiff to lease the premises for the balance of his term and agreed that if the plaintiff did let such premises he would pay, and the plaintiff agreed to accept, the sum of twenty dollars and eighty cents in full discharge and settlement of all claims under the agreement. Thereafter the plaintiff did rent the premises but defendant refused to pay said sum. The answer of the defendant set up a general denial and a counterclaim for forcible exclusion and detainer of said premises from the twelfth day of December.

At the trial there was a conflict of testimony as to the

Misc.]

Supreme Court, Appellate Term, May, 1911.

making of the agreement, and the trial justice believed the story of the defendant, and there is no reason for disturbing his finding on that issue. He also rendered judgment for the defendant on the counterclaim for treble damages and this part of the judgment must be reversed. I am doubtful whether the defendant has shown either such "force" or putting in fear of personal violence" as would justify an award for treble damages, but I do not think it necessary to consider this question because the judgment on the counterclaim cannot be sustained since it appears that the counterclaim was improperly interposed. The plaintiff sues upon a contract and the defendant cannot interpose a counterclaim for a tort unless the cause of action arises out of the same contract or transaction. The defendant claims that he never had any such transaction and never agreed to allow the plaintiff to lease the premises but was wrongfully kept out of the premises by the plaintiff. If he denies the existence of the transaction he cannot claim that his own cause of action arises out of it. The defendant's cause of action did not arise from the transaction upon which the plaintiff founds his cause of action; it arose solely from the subsequent unlawful act of the plaintiff. The rule governing the interposition of a counterclaim under similar circumstances has been set forth in Adams v. Schwartz, 137 App. Div. 230, 237: "If the facts necessary to the proof of either cause of action involve an inquiry concerning the same transaction or matter that is regarded by many of the authorities as a material consideration, but it is not controlling unless from the nature of the counterclaim it may fairly be said that it arises out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or is necessarily or directly connected with the subject of the action."

The defendant's counterclaim should be dismissed without prejudice to the bringing of an independent action, and the judgment modified to that extent, and, as modified, affirmed, without costs to either party.

SEABURY and GERARD, JJ., concur.

Judgment modified, and, as modified, affirmed.

Supreme Court, Appellate Term, May, 1911.

[Vol. 72.

MORITZ SAFRAN, Appellant, v. NATHAN SILVERMAN, Re

spondent.

(Supreme Court, Appellate Term, May, 1911.)

Landlord and tenant-Rent and advances Actions Counterclaims.

In an action for rent, the tenant cannot counterclaim treble damages for the landlord's forcible entry and detainer of the demised premises during the term.

APPEAL by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the defendant.

Louis S. Posner (Harry G. Anderson, of counsel), for appellant.

H. M. & S. Solomon, for respondent.

LEHMAN, J. The plaintiff was the landlord of certain premises occupied by the defendant under a lease expiring on the 1st day of February, 1911. The defendant moved his place of business from plaintiff's premises in November, 1910, and then requested and received permission from the plaintiff to sublet the premises until the expiration of his lease. On the first day of December he had not yet subleased the premises and he paid his rent for that month. The landlord alleged in his complaint that thereafter the plaintiff and the defendant entered into an agreement whereby the defendant requested the plaintiff to lease the premises for the balance of his term and agreed that if the plaintiff did let such premises he would pay, and the plaintiff agreed to accept, the sum of twenty dollars and eighty cents in full discharge and settlement of all claims under the agreement. Thereafter the plaintiff did rent the premises but defendant refused to pay said sum. The answer of the defendant set up a general denial and a counterclaim for forcible exclusion and detainer of said premises from the twelfth day of December.

At the trial there was a conflict of testimony as to the

Misc.]

Supreme Court, Appellate Term, May, 1911.

making of the agreement, and the trial justice believed the story of the defendant, and there is no reason for disturbing his finding on that issue. He also rendered judgment for the defendant on the counterclaim for treble damages and this part of the judgment must be reversed. I am doubtful whether the defendant has shown either such "force" or "putting in fear of personal violence" as would justify an award for treble damages, but I do not think it necessary to consider this question because the judgment on the counterclaim cannot be sustained since it appears that the counterclaim was improperly interposed. The plaintiff sues upon a contract and the defendant cannot interpose a counterclaim for a tort unless the cause of action arises out of the same contract or transaction. The defendant claims that he never had any such transaction and never agreed to allow the plaintiff to lease the premises but was wrongfully kept out of the premises by the plaintiff. If he denies the existence of the transaction he cannot claim that his own cause of action arises out of it. The defendant's cause of action did not arise from the transaction upon which the plaintiff founds his cause of action; it arose solely from the subsequent unlawful act of the plaintiff. The rule governing the interposition of a counterclaim under similar circumstances has been set forth in Adams v. Schwartz, 137 App. Div. 230, 237: "If the facts necessary to the proof of either cause of action involve an inquiry concerning the same transaction or matter that is regarded by many of the authorities as a material consideration, but it is not controlling unless from the nature of the counterclaim it may fairly be said that it arises out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or is necessarily or directly connected with the subject of the action."

The defendant's counterclaim should be dismissed without. prejudice to the bringing of an independent action, and the judgment modified to that extent, and, as modified, affirmed, without costs to either party.

SEABURY and GERARD, JJ., concur.

Judgment modified, and, as modified, affirmed.