Opinion
January 31, 1930.
Appeal from Supreme Court of New York County.
Edward Gluck of counsel [ William F. Unger with him on the brief; Gilman Unger, attorneys], for the plaintiff.
Samuel Seabury of counsel [ Nathan Friedman, attorney], for the defendant.
We think that it was error for the Special Term to stay the prosecution of the summary proceeding brought by defendant to oust plaintiff from the premises in question for non-payment of rent. The moving papers show that plaintiff asserts a complete defense to the summary proceeding which is grounded on the allegations that the defendant's failure to maintain a restaurant next door to the plaintiff constituted an eviction. That defense cannot be tried in this action or urged on a motion. It can be tried in the summary proceeding in the Municipal Court. If found valid, plaintiff will not be ousted. No legal ground is thus furnished for enjoining the prosecution of the dispossess proceeding. We think too it was error for one justice, in effect, to reverse the order of another by granting the relief which theretofore had been denied.
On defendant's appeal the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, and the stay vacated. Plaintiff's appeal should be dismissed.
DOWLING, P.J., FINCH, MARTIN and O'MALLEY, JJ., concur.
Order reversed upon defendant's appeal, with ten dollars costs and disbursements to the defendant, and motion denied, with ten dollars costs, and stay vacated. Appeal by plaintiff dismissed.