Opinion
October 15, 1945.
Present — Close, P.J., Hagarty, Carswell, Johnston and Adel, JJ.
Action in ejectment brought by the plaintiff to oust defendants from a portion of certain real property in Queens County. Defendants interposed a counterclaim which, in effect, required specific performance of a claimed lease of the premises and, in addition, sought damages. Upon answers by the jury to specific questions, judgment was entered dismissing the complaint without prejudice to plaintiff recovering rent under the lease of the premises, and it was directed that defendants should have a lease thereof in accordance with specified terms, without prejudice to asserting a claim for damages, if any, suffered by reason of the failure of the plaintiff to comply with certain provisions of the lease. There was a further provision that the plaintiff was required to execute the lease upon the tender of rent due to date. Judgment modified on the law and the facts by striking out the provision in reference to the making of repairs being conditioned on the tender or deposit of the rent, and by adding a provision allowing costs to defendants. As so modified, the judgment, insofar as appealed from, is unanimously affirmed, with costs to defendants. Appeal from orders dismissed, without costs. Conditioning the making of the repairs, etc., upon the tendering of the rent will unnecessarily precipitate further and new contentions between the parties. The amount of the rent due and the amount of the damages, if any, should be determined summarily, free from any such further contentions, in accordance with the terms of the lease as they have been determined in this action. The defendants were entitled to costs as of course since they prevailed in an action, triable by a jury, to recover real property. (Civ. Prac. Act, §§ 1470, 1475.)