Ingraham, J.:
The complaint alleges that on or about the 17 th day of July, 1902, the defendant, the owner of certain premises in the city of New York, instituted summary proceedings to recover possession of the premises, alleging a default in the payment of rent under a lease to the plaintiffs - assignor; that in such proceeding this plaintiff duly appeared and filed his verified answer denying the allegations of the petition and alleging that all rent due under the lease had been paid; that, upon the trial of the issues thus presented, the , plaintiff claimed to have paid certain sums of money for interest of mortgage, taxes and water rates imposed upon the said property that the defendant had failed to pay, and claimed to be entitled to credit of the amount thus paid under a clause in the lease .which provided that in case default should at any time be made by the owner in the payment of any interest on mortgages then a lien on the demised premises, or in case the owner should fail to pay the taxes, water rates and assessments levied thereon, the said lessee should have the right to pay the same and deduct the amount of such payment from any rent then due or to become due under the said lease; that among other sums claimed to have been paid by the said plaintiff was the sum of fifty-two dollars water rent; that [95]*95upon the trial of the proceeding the petitioner claimed, to the surprise of the plaintiff, to have paid said sum of fifty-two dollars for water rent prior to its payment by the plaintiff, and disputed the other payments alleged to' have been made by the plaintiff for taxes and interest upon mortgages upon the leasehold premises; that it seems to have been conceded that, unless these payments were established and the plaintiff was entitled to deduct the amount thereof from the rent due under the lease, the plaintiff had failed to pay the rent due, and the question before the justice of the Municipal Court was, whether or not the plaintiff had made the payments alleged which he was entitled to deduct from the rent; that, if in point of fact this sum of fifty-two dollars was paid by the defendant as aforesaid, prior to the payment by this plaintiff, the plaintiff was “ innocently in default on the 1st day of July, 1902, in the payment of rent under said lease in the amount of $13.80, which amount, with interest thereon to August 4, 1902, amounting to $0.08, in all $13.88; ” that the issues raised by the petition and answer in such proceeding came on for trial before the Municipal Court of the city of New York in the tenth judicial district; the evidence was taken before the court and the case was taken under advisement by the justice on the 4th of August, 1902, and that no final order in the proceeding had been made; that on August 4, 1902, the plaintiff duly paid into the said Municipal Court the sum of thirteen dollars and eighty-eight cents, together with the costs of the summary proceedings to the credit of the said proceeding, and for the benefit of the defendant, the petitioner therein, and on the same day notified the defendant of such payment, and that when the rent for the month of August, 1902, became due the plaintiff duly tendered the full amount thereof te the defendant.
Upon these facts, which were not'disputed by the defendant, the plaintiff commenced this action, asking for an accounting between the plaintiff and the defendant to determine the amount of rent due under the lease, and for an injunction restraining the defendant from continuing said summary proceeding, and the institution of any other proceeding by reason of any alleged default in said rent before accruing ; and obtained from the court below an injunction restraining the further prosecution of the summary proceeding before the Munic[96]*96ipal Court and restraining the defendant, her agents, attorneys and servants from procuring or suffering the issuance of a warrant of dispossess in said summary proceeding, and from interfering in anywise with the peaceable use and enjoyment by the plaintiff, his sub-tenants and assigns, and all persons claiming under him or any of them in the premises in question, and from dispossessing or evicting him or them therefrom. And from the order continuing such in junction during the pendency of the action the defendant appeals.
. These proceedings are regulated by the Code of Civil Procedure (§§ 2231-2265). Section 2235 provides that the applicant must present to the judge or justice a written petition, describing the premises of which the possession is claimed and the interest therein of the petitioner, stating the facts which, according to the provisions of the title,
It has long been settled that a court of equity will not enjoin the prosecution of an action of ejectment or the enforcement of a judgment to such an action where the facts relied upon to justify the injunction could have been set up as a defense in the ejectment action.
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Ingraham, J.:
The complaint alleges that on or about the 17 th day of July, 1902, the defendant, the owner of certain premises in the city of New York, instituted summary proceedings to recover possession of the premises, alleging a default in the payment of rent under a lease to the plaintiffs - assignor; that in such proceeding this plaintiff duly appeared and filed his verified answer denying the allegations of the petition and alleging that all rent due under the lease had been paid; that, upon the trial of the issues thus presented, the , plaintiff claimed to have paid certain sums of money for interest of mortgage, taxes and water rates imposed upon the said property that the defendant had failed to pay, and claimed to be entitled to credit of the amount thus paid under a clause in the lease .which provided that in case default should at any time be made by the owner in the payment of any interest on mortgages then a lien on the demised premises, or in case the owner should fail to pay the taxes, water rates and assessments levied thereon, the said lessee should have the right to pay the same and deduct the amount of such payment from any rent then due or to become due under the said lease; that among other sums claimed to have been paid by the said plaintiff was the sum of fifty-two dollars water rent; that [95]*95upon the trial of the proceeding the petitioner claimed, to the surprise of the plaintiff, to have paid said sum of fifty-two dollars for water rent prior to its payment by the plaintiff, and disputed the other payments alleged to' have been made by the plaintiff for taxes and interest upon mortgages upon the leasehold premises; that it seems to have been conceded that, unless these payments were established and the plaintiff was entitled to deduct the amount thereof from the rent due under the lease, the plaintiff had failed to pay the rent due, and the question before the justice of the Municipal Court was, whether or not the plaintiff had made the payments alleged which he was entitled to deduct from the rent; that, if in point of fact this sum of fifty-two dollars was paid by the defendant as aforesaid, prior to the payment by this plaintiff, the plaintiff was “ innocently in default on the 1st day of July, 1902, in the payment of rent under said lease in the amount of $13.80, which amount, with interest thereon to August 4, 1902, amounting to $0.08, in all $13.88; ” that the issues raised by the petition and answer in such proceeding came on for trial before the Municipal Court of the city of New York in the tenth judicial district; the evidence was taken before the court and the case was taken under advisement by the justice on the 4th of August, 1902, and that no final order in the proceeding had been made; that on August 4, 1902, the plaintiff duly paid into the said Municipal Court the sum of thirteen dollars and eighty-eight cents, together with the costs of the summary proceedings to the credit of the said proceeding, and for the benefit of the defendant, the petitioner therein, and on the same day notified the defendant of such payment, and that when the rent for the month of August, 1902, became due the plaintiff duly tendered the full amount thereof te the defendant.
Upon these facts, which were not'disputed by the defendant, the plaintiff commenced this action, asking for an accounting between the plaintiff and the defendant to determine the amount of rent due under the lease, and for an injunction restraining the defendant from continuing said summary proceeding, and the institution of any other proceeding by reason of any alleged default in said rent before accruing ; and obtained from the court below an injunction restraining the further prosecution of the summary proceeding before the Munic[96]*96ipal Court and restraining the defendant, her agents, attorneys and servants from procuring or suffering the issuance of a warrant of dispossess in said summary proceeding, and from interfering in anywise with the peaceable use and enjoyment by the plaintiff, his sub-tenants and assigns, and all persons claiming under him or any of them in the premises in question, and from dispossessing or evicting him or them therefrom. And from the order continuing such in junction during the pendency of the action the defendant appeals.
. These proceedings are regulated by the Code of Civil Procedure (§§ 2231-2265). Section 2235 provides that the applicant must present to the judge or justice a written petition, describing the premises of which the possession is claimed and the interest therein of the petitioner, stating the facts which, according to the provisions of the title,
It has long been settled that a court of equity will not enjoin the prosecution of an action of ejectment or the enforcement of a judgment to such an action where the facts relied upon to justify the injunction could have been set up as a defense in the ejectment action. If, therefore, the Municipal Court had jurisdiction to determine the questions presented by the complaint and which the plaintiff asks may be determined in this action, then under the prohibition contained in section 2265 of the Code the injunction restraining the prosecution of the proceeding or the issuance of the warrant to dispossess the plaintiff should not have been granted. Under section 2244 of the Code, the defendant could by his answer deny the fact that rent was due and unpaid and that he held over after default in the payment thereof, and upon the trial show that the rent had been paid, or that under the lease there was no rent due; and if an accounting was required to determine that question, such an accounting could have been had before the justice. If, under the terms of the lease, the plaintiff had paid the taxes, assessments or interest which he was entitled to apply upon rent due of to grow due equal in amount to the rent due, the justice had jurisdiction to try that issue, and, upon proof of that fact, the issuance of a warrant by the justice would be error. If there was an erroneous determination by the justice of any question relevant upon the' trial of the [98]*98issue raised by the answer to the petition, the plaintiff’s remedy was an appeal from the final order awarding possession of the premises to the defendant. TIpon such appeal ample provision is made for a stay of the warrant to be issued under such order. (§ 2262). That Upon such a defense being set up by answer, it was intended that the question of the amount of rent due should be determined by the justice, appears-from the last clause of section 2244, which provides : “ 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 an action.” If the landlord had sued the tenant for rent, and the tenant had set tip as an answer that he had paid taxes, assessments and interest, which, under the terms of the lease, were to be deducted from the rent due, the question as to how much was due would be necessarily involved, and the court would have to determine whether the various payments had been actually made by the tenant, and whether such payments should be deducted from the rent to be paid under the lease, and when a defense in such a proceeding, which alleges the payment of the rent, is interposed, it is to be “ set up and established in like manner as though the claim for rent in such proceeding was the subject of an action.” When the action was commenced there was no determination by the justice of the question submitted to him, and no final order has been granted directing the issuance of a warrant, and it cannot be presumed that the justice will issue a warrant unless the proof before him justifies it. We must take the facts alleged in the complaint as true in determining whether or not the court should interfere with this proceeding regularly before the justice of the Municipal Court and stay the further prosecution thereof; All of these questions can be settled, and should be settled, in the special proceeding before the justice of the Municipal Court, and there is certainly in such a case as this no justification for an application to a court of equity before a final Order had been granted. If a final order adjudging to the landlord the possession of the premises should be granted, and plaintiff could not ascertain the amount due for rent, or from the nature of the-'decision of the justice that question could not be determined, and the defendant threatened to execute the warrant, notwithstanding the tender of the amount of rent actually due, the propriety of an appeal to a court of equity for relief would then be [99]*99presented. The eases decided before the amendment of the Code giving to the justice jurisdiction to determine such a question as was here presented do not now apply.
I think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs.
Van Brunt, P. J., and McLaughlin, J., concurred; O’Brien and Hatch, JJ., dissented.
Code Civ. Proc. chap. 17, tit. 2. — [Rep.