Barney v. DuVivier

Bijur, J. This proceeding was brought to recover possession, because of nonpayment of rent for April, 1914, due April 1, $166.66. The lease was made February 24,1909, for five years from May 1,1909, to May 1, 1914, to Charles DuVivier “ doing business under the firm name of DuVivier & Company.” The tenant covenanted therein not to assign without the landlord’s consent in writing. The answer alleges that DuVivier in 1909 assigned the lease to DuVivier & Company, -a corporation, which has since then been in possession; that the landlord consented to such assignment, accepted the rent from the corporation with full knowledge thereof, and accepted the corporation as tenant. As a separate defense and by way of offset and counterclaim, DuVivier alleges that in February, 1914, the roof was broken by the landlord and rain and water entered the premises; that the landlord neglected to repair after notice; and that by reason thereof the corporation sustained damages to its goods and merchandise to the amount of $244. Also that the damage was caused solely by the carelessness and negligence of the landlord. It seems clear that this proceeding, brought only against the original lessee, is ineffective to terminate the rights of, or remove from possession, the assignee who is not a party and who has not been served. Croft v King, 8 Daly, 265; Ash v. Purnell, 16 id. 189, 192. Respondent seeks support for his right to interpose this counterclaim in the general language of section 2244 of the Code, permitting the person to whom the precept is directed or any person in possession or [31] claiming possession of the premises to interpose a counterclaim. This point, would be good if the counterclaim were interposed by the corporation, the assignee of the lease, after intervening in the proceeding. See Cohen v. Carpenter, 128 N. Y. 862; Levy v. Wrinkler, 59 Misc. Rep. 482; Matter of Wright, 16 N. Y. Supp. 808,— in all of which cases, however, the party affected sought to interpose merely a defense and not a counterclaim. In the case at bar, however, the tenant tenders a counterclaim which does not run in his favor, but in favor of a third person, the assignee in possession. Such a claim is not available to him. Code Civ. Pro. § 501; Fulton County G. & El. Co. v. Hudson River T. Co., 200 N. Y. 287, 291; Rogers v. Kelsey, 105 N. Y. Supp. 119. Respondent also appeals to section 223 of the Real Property Law. But apart from the fact that that section, by reason of its history, must be deemed to have no application to a lease like the present, it furnishes no authority, even by its terms, for this attempt of the lessee to interpose a counterclaim running in favor solely of bis assignee. Finally, respondent urges that he has the right to interpose this counterclaim because his position is practically that of surety for the assignee of the lease, citing Crowley v. Gormley, 59 App. Div. 256, 257. All that that ease holds, however, is that, as between the lessee and his assignee, that relation obtains; and I think that that would also be true as against a lessor who had assented to the assignment. There is, however, in the case at bar, no evidence of the landlord’s assent, except so far as it may be inferred from the mere fact that the rent was paid by checks of the assignee corporation in possession. That this standing by itself would not furnish a basis for a finding that the landlord had assented to the assignment is ele [32] mentary; and it is all the more true here because the lease is in terms made between the landlord and Charles DuVivier “ doing business under the firm name of DnVivier & Co.” Guy and Pendleton, JJ., concur. Judgment reversed and new trial granted, with costs to appellant to abide event.