Citation Numbers: 130 Misc. 385
Judges: Thompson
Filed Date: 9/15/1927
Status: Precedential
Modified Date: 1/12/2023
In plaintiff’s action for conversion defendant has interposed a counterclaim for rent. Defendant was the landlord
It appears that' the tenant had vacated the premises, and the landlord had come into possession of them. Thus in law the lease was surrendered and the relationship of landlord and tenant came to an end. (Saracena v. Preisler, 180 App. Div. 348.) True there was an amount due for rent, and true also plaintiff left the property upon the premises, for the conversion of which he is here suing, he claiming that he had not yet had opportunity to remove it and defendant insisting that he had abandonéd it. In these circumstances, however, it does not seem to me that it can be said that the cause of action for rent arose out of the transaction in conversion or that it has any connection with it.
It is the general rule that an independent tort which is not connected with the subject of an action for rent cannot be made the basis of a counterclaim or setoff in such an action, and the converse of this rule is equally true. (34 Cyc. 706, 16 R. C. L. 942; 36 C. J. 410; Van v. Madden, 132 App. Div. 535.)
So we find that in an action upon a lease for office rent, a counterclaim for damages suffered by the tenant due to the landlord’s allowing occupants of adjoining rooms to carry on a noisy mechanical business, interfering with the use and occupancy of the demised premises, the court held that such a defense did not constitute a counterclaim. (Boreel v. Lawton, 90 N. Y. 293.)
In Miller Co. v. Stokes (7 Misc. 433) a tenant sued his landlord for the conversion of his office furniture and the landlord attempted to interpose a counterclaim for rent. In sustaining a demurrer to the counterclaim the court wrote among other things: “ The mere fact that the tenant placed these chattels in the premises demised to him by defendant, who converted them to his own use, does not make the landlord’s cause of action for unpaid rent arise out of the tenant’s action in tort for conversion, or connect it with the subject of such action.” (See, also, Finkelmeier v. Bates, 48 N. Y. Super. Ct. [16 J. & S.] 433; affd., 92 N. Y. 172.) Again in Ludlow v. McCarthy (5 App. Div. 517), which was an action to recover rent, it was held that the conversion of the tenant’s personal property by the landlord was a separate and independent act, disconnected from the subject of the action, and could not be said
Tested by the rule of these cases this counterclaim cannot be interposed against the cause of action alleged in the complaint.
The motion to strike out the counterclaim is granted; in all other respects the motion is denied. No costs. Submit order upon notice or consent. So ordered.