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In re Caffrey.

notice of claim was "duly filed" on January 13, 1899, and it is admitted by the answer that such claim was filed on that date, but it is not alleged therein that the grade was changed more than 60 days previous to the filing of the claim. The jurisdiction of a court of general jurisdiction is presumed, and is not questioned unless lack thereof is shown on the trial or appears in the record. Barker v. Steamship Co., 91 Hun, 495, 36 N. Y. Supp. 256, affirmed 157 N. Y. 693, 51 N. E. 1089. We must assume then that the order of appointment was properly made. Further, there is no appeal from that order, and the notice of this appeal does not show any intention to bring up that order upon this appeal. In Re Ludlow St., 47 App. Div. 318, 62 N. Y. Supp. 42, we held that an appeal from an order confirming the report of the commissioners of assessment in a street opening presents no question of the regularity or validity of the proceeding, but involves only the question of correct discharge of the duties of the commission in imposing the necessary assessments and making the necessary awards. And so the only question here before us is whether the commission properly discharged its function of ascertaining what compensation, if any, should be made to the petitioner. An appeal could have been taken from the order of appointment made by the special term. In re City of Buffalo, 64 N. Y. 547; In re Thompson, 86 Hun, 405, 410, 33 N. Y. Supp. 467, affirmed 147 N. Y. 701, 42 N. E. 726. But the decision of the commission as to the regularity or validity of the proceedings now sought to be reviewed is a nullity. Risley v. Bank, 83 N. Y., 337; In re Walker, 136 N. Y. 29, 32 N. E. 633. The question of the lack of jurisdiction of the commission in the premises can be first raised here. In re Livingston, 34 N. Y. 555, 570; Burk v. Ayres, 19 Hun, 17, 24; Dakin v. Demming, supra. To give effect to this stipulation on the ground of propriety in this case would still make a precedent, and no court should give such play to private compact. Pressing needs make but poor precedents, and pre

Gay v. Riehmann Mantel Co.

cedents may work much mischief, for Bacon has said: "For many times the things deduced to judgment may be meum and tuum when the reason and consequence thereof may touch to point of estate." The only question before the court is whether the order of the special term confirming the roport of the commissioners of appraisal, who were appointed to award compensation and made their report of an award, should be confirmed. The appellant claims no error, and we find none.

The order should be affirmed, with costs. All concur.

GAY v. RIEHMANN MANTEL CO.

SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT, JULY TERM, 1900.

S$ 2235, 2244, 2249.

Summary proceedings-Counterclaim for damages.

Section 2244 of Code of Civil Procedure cannot be so construed as to require a defendant to plead and litigate in summary proceedings any counter claim which he may have arising out of the relation of landlord and tenant of leased premises, and permit the recovery of a money judgment thereon when the petitioner is not permitted under the Code to recover judgment for the amount of rent due.

The reasonable construction of section 2244 is that it only authorizes such defenses to be interposed as might defeat the petitioner's right to the possession of the premises for which alone such sum mary proceedings is brought or permitted by the Code. (Decided, July, 1900.)

Appeal from special term, Erie county.

Action by Sarah A. Gay, as executrix, against the Riehmann Mantel Company. From a judgment of the special

Gay v. Riehmann Mantel Co.

term of the supreme court affirming a judgment of the municipal court of Buffalo in favor of defendant, plaintiff appeals. Affirmed.

Elisha W. Holt, for appellant.

D. B. Tuttle, for respondent.

MCLENNAN, J.-The facts in this case are not in dispute, and a question of law only is presented for determination by this appeal. The defendant entered into possession of certain premises in the city of Buffalo, N. Y., owned by the plaintiff, under a written lease dated August 31, 1899, which provides, among other things, as follows: "Said party of the first part hath agreed to let, and hereby doth let, and the said party of the second part hath agreed to take, and hereby doth take, those certain premises situated in the said city of Buffalo, and known as 'Ground Floor of Building Nos. 39 and 41 Perry street,' with power to run machinery not to exceed (15) fifteen horse power, and steam heat, also steam for dry kiln, also use of shed in yard adjoining coal shed, for storage of lumber, size about 12x16, for the term of one year, to commence on the 1st day of October, 1898, and to end on the 1st day of October, 1899, at eight o'clock in the forenoon. The said party of the second part agrees to pay to the said party of the first part the annual rent of one thousand dollars, in monthly payments of eighty three and 34-100 dollars, on the first day of each month, in advance, with the privilege of two years more from October 1, 1899, to October 1, 1901, at same rental, by party of second part giving to party of first part written notice of such intention to rent on or before August 1, 1899."

The defendant paid the rent stipulated when and as the same became due and payable by the terms of said lease, until the 1st day of February, 1899, when it neglected to pay the rent for the month of March, 1899. It also

Gay v. Riehmann Mantel Co.

neglected to pay the rent for the month of April, 1899, which became due on the 1st day of that month. Thereafter, and on the 18th day of April, 1899, summary proceedings were instituted by the plaintiff in the municipal court of the city of Buffalo to oust the defendant from the ossession of the premises, on the ground of nonpayment of rent, and on the ground that because of the default in the payment of rent the lessor (the plaintiff) had exercised the option given him by the provisions of the lease, and had terminated the tenancy. In said proceedings a precept was duly issued and served on the defendant, returnable before the municipal court on a day specified. On the return day the defendant did not appear, but made default; and a final order was thereupon made by the municipal court adjudging that the defendant was in default in the payment of rent, and adjudging that a warrant issue, dispossessing the defendant of the premises in question. Thereupon, and about the last of April, 1899, said warrant was issued, and the defendant was dispossessed of said premises, and since that time has not occupied the same or any part thereof. The municipal court by its judgment did not assume to determine the amount of rent due from the defendant to the plaintiff, or any other question affecting the rights of the parties, except to adjudge:

"That said tenant defendant holds over after default in payment of rent, without the permission of the said petitioner [the plaintiff]; that the possession of said premises be delivered to said petitioner; that a warrant issue to put him in possession of said premises; and that he recover against said tenant the sum of ninety-five cents for the costs of this proceeding."

Thereafter, and on the 31st day of May, 1899, the plaintiff brought this action in the municipal court of the city of Buffalo to recover the rent for default in the payment of which the summary proceedings above referred to were instituted, to wit, the rent for the months of March

Gay v. Riehmann Mantel Co.

and April, 1899, amounting to the sum of $166.66. The defendant duly appeared, and by its answer denied that any rent was due or owing from it to the plaintiff, and pleaded a counterclaim of $415.25 damages alleged to have been sustained by it on account of the failure of the plaintiff to furnish power and heat to it while occupying said premises, as provided in said lease. The issues so framed were tried by the municipal court, and it found and decided that the whole amount of rent for the months of March and April, 1899, was due and owing to the plaintiff, and the plaintiff was credited with the full amount thereof; but the court also found that the defendant had sustained damages in excess of said sum to the amount of $261.91, by reason of the failure of the plaintiff to furnish power and heat as required by the lease in question, and judgment was entered accordingly and in favor of the defendant for $261.91, with $25 costs. From the judgment. so entered an appeal was taken to the special term of the supreme court upon questions of law only. The judgment of the municipal court was affirmed by the special term, and from the judgment of affirmance this appeal is taken.

Upon the trial in the municipal court the evidence offered and given by the defendant for the purpose of proving its counterclaim was duly objected to by the plaintiff on the ground, in substance, that the final order in summary proceedings which was introduced in evidence was

bar to its counterclaim, and that the only question which should be litigated was the amount of rent which was due and owing to the plaintiff under the terms of the lease in question. The objection was overruled, and the evidence was received, and an exception was duly taken by the plaintiff. This objection and exception present substantially the only question involved upon this appeal.

Section 2244 of the Code of Civil Procedure provides: "At the time when the precept is returnable

the person to whom it is directed

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*

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* may file with

the judge or justice who issued the precept a written

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