240 West 37th Street Co. v. Lippman

Appellate Division of the Supreme Court of New York

240 West 37th Street Co. v. Lippman

241 A.D. 529, 272 N.Y.S. 739, 1934 N.Y. App. Div. LEXIS 8296

Appellate Division of the Supreme Court of the State of New York·Decided June 21, 1934·Published·Cited by 9 cases

Opinion

Per Curiam.

We are of opinion that in summary proceedings a tenant may interpose a counterclaim for breach of the landlord’s duty to repair. While agreeing with the Appellate Term that the counterclaim here pleaded was insufficient, we are of opinion that the judgment in favor of the landlord should be reversed and a new trial ordered upon which the tenant may move to amend. The dismissal at the opening of the case was solely upon the ground that it had not been properly interposed. This was error. Had a motion been directed to its sufficiency, the tenant could have moved to amend.

The determination of the Appellate Term and the judgment of the Municipal Court should be reversed, and a new trial ordered, with costs to the appellant in all courts to abide the event.

Present — Finch, P. J., Merrell, Martin, O’Malley and Untermyer, JJ.

Determination appealed from and judgment of the Municipal Court reversed and a new trial ordered, with costs to the appellant in all courts to abide the event.

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Per Curiam.

We are of opinion that in summary proceedings a tenant may interpose a counterclaim for breach of the landlord’s duty to repair. While agreeing with the Appellate Term that the counterclaim here pleaded was insufficient, we are of opinion that the judgment in favor of the landlord should be reversed and a new trial ordered upon which the tenant may move to amend. The dismissal at the opening of the case was solely upon the ground that it had not been properly interposed. This was error. Had a motion been directed to its sufficiency, the tenant could have moved to amend.

The determination of the Appellate Term and the judgment of the Municipal Court should be reversed, and a new trial ordered, with costs to the appellant in all courts to abide the event.

Present — Finch, P. J., Merrell, Martin, O’Malley and Untermyer, JJ.

Determination appealed from and judgment of the Municipal Court reversed and a new trial ordered, with costs to the appellant in all courts to abide the event.

240 West 37th Street Co. v. Lippman, 241 A.D. 529, 272 N.Y.S. 739, 1934 N.Y. App. Div. LEXIS 8296 (N.Y. Ct. App. 1934).

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241 A.D. 529 (240 West 37th Street Co. v. Lippman) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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