Frank v. Miller (116 A.D. 855, 1907)

Gaynor, J.:

The landlord had instituted a prior proceeding in December, 1905* against'the tenant to remove her for the non-payment of the rent which came due the first day of that month. The petition alleged that the. landlord let the premises to the' tenant for one month on November 1st, 1905,. for the 'rent of $16.50, and from month to month thereafter at $30 a month, and that the rent for December was Unpaid. The tenant filed an answer which made a general denial to the petition, and then alleged as a “ defence ’’ that .the landlord’s predecessor in title had leased to her the premises on October 15th, 1905* for one year at $16.50"a month. •

This allegation of a lease up to October 15th, 1906, was not a “ defence” in the pleading meaning of that word, but only a useless recitation of facts intended to show, but which were incompetent to show, that -she had not entered into a lease with the petitioner On November 1st, 19Ó5, and was not in default thereunder for December’s rent, which was the issue framed by the denial of the petition, The petition alleged that the petitioner had made a lease ,to the tenant apd that the latter .was in default for December’s rent thereunder, and that was the issue". For the tenant to prove that the premises had been leased to her by the former owner was irrelevant to the issue; it would not be evidence that she had not subsequently entered into a new lease with the new owner, the petitioner. And if it were competent on that issue the case would not be changed. A defence cannot be of facts that may be proved under a denial; it can only be of new matter, i.