Opinion
December 7, 1953.
In a summary proceeding to recover possession of real property on the ground of nonpayment of rent, the tenant by way of defense and counterclaim alleges that the landlord failed to paint and decorate the premises, an apartment in a large apartment house. The landlord appeals from a final order of the City Court of Mount Vernon insofar as said order abates or diminishes the rent, and from an order of said court denying a motion to dismiss the tenant's counterclaim and setoff. Final order, insofar as appeal is taken, modified on the law and the facts by striking therefrom the two "further findings" set forth therein; by striking therefrom the next to the last ordering paragraph, and by striking from the last ordering paragraph the figures "$70.00" and "$1.15" and by substituting in place thereof the figures "$75.00" and "$6.35." As thus modified the order is unanimously affirmed, without costs. It is undisputed that the apartment premises have not been painted by the landlord or his predecessors in the past four or five years. The evidence further shows that the statements of registered maximum rent do not include painting and decorating, but the tenant disputes the verity of the registration statements. Under the facts, the court was without power to determine that there was a decrease in services to which the tenant was entitled, the remedy being by proper application to the Temporary State Housing Rent Commission, nor is there any evidence to support the finding that the services were the subject of a contract obligation. Appeal from order denying motion to dismiss tenant's counterclaim and setoff dismissed, without costs. No such order is printed in the record. Nolan, P.J., Adel, MacCrate, Schmidt and Beldock, JJ., concur.