Opinion
April 16, 1956
Present — Nolan, P.J., Beldock, Murphy, Ughetta and Hallinan, JJ.
Present — Nolan, P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ. [See ante, p. 827.]
Motion referred to the court that rendered the decision.
Motion by respondent to reargue the appeal or, in the alternative, for other relief, denied, without costs. We did not in deciding the appeal, nor do we now, consider the counterclaim interposed in the amended answer as demanding relief in ejectment. On consideration of the appeal, we accepted respondent's characterization of her own pleading. In her brief, she stated that in the original answer her intestate had counterclaimed for the agreed rental of the premises involved, and that when he died she was unable to prove the agreement to pay rent, because it was oral. Consequently, she stated, she interposed a counterclaim as administratrix for the value of the use and occupation of the premises. Nowhere in the counterclaim was it alleged that respondent was the owner of or entitled to the immediate possession of the property. Cross motion by appellant to recall the remittitur and for other relief denied, without costs. Although the judgment awarded possession to respondent on payment by her of the amount of the judgment against her, it does not follow that the counterclaim, on which such judgment was entered, was considered to be for ejectment. In the exercise of its equitable jurisdiction, the Special Term was empowered to provide that appellant should surrender possession of the property as a condition of securing the relief granted. In any event appellant did not contend on the argument of the appeal that the judgment, if otherwise proper, was defective insofar as it so provided.