Walker v. Shoemaker

Brady, J.: The action is to recover rent. The defense is a counter-claim. The facts constituting it are as follows: After the defendant had taken possession, plaintiffs obtained the right, by agreement with him, to put a new roof on the house demised, which was not needed to prevent waste or injury — a privilege not reserved by the agreement of rental. In consideration of this right, thus granted, the plaintiffs promised to do the work with diligence, care and caution, which they failed to.do, and by winch failure the defendant was injured. The court at Special Term held that these elements presented a good defense by way of counter-claim, and overruled the. plaintiffs’ demurrer, by which the converse of the proposition was sought to be maintained. The defense by way of counter-claim, in actions of this kind, has been limited by the cases, and ,the rule declared is, that a mere trespass, and indeed a tort of any character, not amounting to eviction in whole or in part, cannot be set up as a defense. (Cushing v. Adams, 18 Pick., 110, 114; Drake v. Cockroft, 4 E. D. Smith, 34; Mayor, etc., v. Parker Vein S. S. Co., 21 How., 289 ; Cram v. Dresser, 2 Sandf., 120; Edgerton v. Page, 20 N. Y., 281.) It must appear, to create such a defense, that the acts of the [581] landlord amount to a breach of the contract of letting; otherwise they are not connected with the subject of the action. (Edgerton v. Page, supra.) Hone of these adjudications, however, discuss the effect of the provisions of the Code in relation to counterclaims, to which particular reference will be made hereafter, and none of them bear any analogy to this case, except Cram v. Dresser (supra). In that case the landlord entered to make repairs under a right thereto reserved in the lease, and the defendant, feeling aggrieved by the manner in which the right was exercised, claimed damages in diminution of the rent, but the claim was' rejected. The decision was made, however, before the provisions of the Code in reference to counter-claims were enacted, and rested upon the doctrine of recoupment of damages established by the case of Reab v. McAlister (8 Wend., 109); a doctrine conceded to be more limited than the statutory counter-claim under which the defendant here seeks to be allowed his damages. Under the provisions of the Code (§§ 149, 150), there are two classes of counterclaims, indicated by the first and second subdivisions of section 150. The second subdivision", prescribing the second class of counterclaims allowed to be set up, so far as it relates to the subject-matter in hand, is as follows: “ In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.” The cause of action which the defendant sets up as a counter-claim is one arising on contract. It is not a trespass or a tort, but solely a claim for the violation of an express contract. The plaintiffs, to put on the new roof, entered under the contract and as matter of right, having promised to do what they were granted the privilege of doing, in a careful workmanlike manner, and diligently, so that the beneficial enjoyment of the premises would not be prevented or unnecessarily interfered with. They failed to do this, and the defendant’s claim for such failure necessarily arises out of contract, and is one relating to the subject-matter of the action, namely, the use of the premises demised; though perhaps not connected with the subject of the action, namely, the payment of the rent as declared by the cases, supra. The Code thus providing that when, as in this case, the action arises on contract, “ any other cause of action arising on contract ” may be set up as a counter-claim, the defense interposed herein, [582] arising, as it does, on contract, is a valid defense and cannot be rejected. The design of the statute is to avoid circuity of action, allowing parties to settle their differences by the examination of mutual demands, and arraying them each against the other. This object seems to be very clearly expressed by the language employed: “ Any other cause of action arising also on contractand by-the further provision: “ The defendant may set forth by answer as many defenses and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both;” thus establishing a consolidation of causes of action through the medium of an answer, and giving the parties an opportunity, in one litigation, of disposing of various claims, if they really exist, or are asserted to have some foundation in fact. For these reasons it is thought that the defense was proper, and the decision of the court at Special Term correct. The suggestion that the agreement is without consideration, is not, under the circumstances of this case, entitled to serious examination. The plaintiffs have enjoyed the advantages of the contract. It is executed, and they must accept the burdens it imposed, whatever they may be. The proposition that the agreement was a naked or conditional license, and revokable at pleasure, is not available to the plaintiffs as a release from any obligation incurred by its use. The defendant could not have withdrawn it, as suggested by the learned presiding justice in deciding the demurrer, after the plaintiff had partially completed the roof. This seems to be demonstrated by the eases which he cites: Mumford v. Whitney (15 Wend., 380); Pierrepont v. Barnard (2 Seld., 279); see, also, Miller v. The Auburn and Syracuse R. R. Co. (6 Hill, 61). But being executed and unrevoked, it is clear on the authorities, that even if the agreement were a mere license and without consideration, it would be a justification of the act of entering upon the premises to erect the roof, and therefore binding. The consideration of the agreement here was the benefit derived from the completion of the new roof, while the premises were occupied by a tenant paying rent. The order made at Special Term should be affirmed, with costs. Daniels, J., concurred. Order affirmed.