Martin v. Crest Brand Bandeau Co.

Bijur, J. From the stipulated facts it appears that plaintiff and defendant entered into a lease of a loft in certain premises for one month, beginning February 1, 1913, at the monthly rental of sixty-six dollars and sixty-six cents, payable on the first day of the month in advance, and that under and by virtue of a referee’s deed in an action to foreclose a mortgage, to which action plaintiff and defendant were parties, the pur [142] chaser took possession of the premises on the 7th of February, 1913. Thereupon defendant paid to the purchaser fifty dollars for rent of the remaining portion of February, and, upon being sued by the plaintiff for the full rent of that month, pleaded eviction by paramount title, tendered sixteen dollars and sixty-six cents into court, and counterclaimed for fifty dollars. While it is true that rent payable in advance is due and payable regardless of what transpires subsequently to the due date, and therefore the change of ownership in the case at bar could not constitute a defense, the defendant having been virtually evicted by paramount title may, by way of counterclaim, recover from the original lessor the value of the balance of his term. See O’Gorman v. Harby, 18 Misc Rep. 228, 230; Zbarazer Realty Co. v. Brandstein, 61 id. 623. Lehman and Whitaker, JJ., concur. Judgment reversed, with costs, and complaint dismissed, with costs.