Pelgram v. Ehrenzweig

Bischoff, J.

(concurring). I agree that the judgment must be reversed and a new trial ordered.

The evidence did not warrant a finding of fraud; and, indeed, the court below predicated its dismissal of the complaint wholly on the defendant’s error in assuming that the lease concerned the east apartment, which he intended to hire, whereas in fact it referred to the west apartment in the same building. At most, therefore, the evidence showed a mutual mistake of the contracting parties for which equitable relief by way of rescission of the lease could he had, were the action pending in a- court having equitable powers, or that the same state of facts would be available as an equitable defense if the court might entertain a defense of that nature.

An equitable defense is presented by a state of facts which, if pleaded as a counterclaim for affirmative relief in a court of equity, or made the basis of an action for such relief in a court of competent jurisdiction, would entitle the pleader to a judgment or decree the effect of which would be to destroy or defeat the claim at law. Dobson v. Pearce, 12 N. Y. 156; Pom. Code Rem., Equitable Defenses, etc., § 4, subd. 87 ei seq., and eases cited in text and notes. That the court has jurisdiction at law only does not necessarily render equitable defenses unavailable in actions at law, if the court is otherwise authorized to entertain such. The determination that an equitable defense exists does not involve an attempt to resolve the court into one of equity, so long as the court does not essay to extend equitable relief. Boyd v. Boyd, 26 Misc. Rep. 679-682; 53 App. Div. 152; Cushman v. Family Fund Soc., 36 N. Y. St. Repr. 856; Homestead Bank v. Wood, 1 Misc. Rep. 145.

Equitable defenses, however, are rendered available in actions at law by the force of section 507 of the Code of Civil Procedure; and by section 20 of the Municipal Court Act (Laws of 1902, chap. 580), the provisions of the Code “ as far as the same may be made applicable and are not in conflict with ” that act are made applicable to the Municipal Court. Section 507 is a part of chapter 6 of the Code; and, by subdivision 4 of section 3347, that chapter is exclusively applicable to the Supreme Court, the City Court of the city of Hew York and the County Courts. It would seem, therefore, that the Municipal Courts are not authorized to entertain equitable defenses, except in summary proceedings to recover the possession of land; and equity jurisdiction in any case is expressly denied. Mun. Ct. Act, § 2, subd. 2.

Judgment reversed, with costs to appellant.