Opinion
March 20, 1950.
Present — Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ.
In a proceeding to recover possession of real property, wherein the tenant counterclaimed for damages for breach of covenants of a lease, judgment of the County Court, Orange County, modified on the law and the facts by adding a provision that the appellant recover of the respondents the sum of $339, together with interest from October 1, 1947, which amount is to offset from the respondents' recovery of $1,338.70. As thus modified, the judgment is unanimously affirmed, with costs of the appeal to the appellant. The evidence establishes that the intention was to deliver possession of habitable premises on October 1, 1947, and that the landlord was unable to comply on that date. The proof fails to establish the other items of alleged damage.