Opinion
February 16, 1961
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, WILLIAM S. SHEA, J.
Joseph Heller for appellant.
Berg A. Boghossian for respondent.
The lease here provides that rent is payable "without any set-off or deduction whatsoever". Having thus agreed, the tenant could not assert and have the court pass upon its counterclaim in the summary proceeding ( Amazon Management Corp. v. Paff, 166 Misc. 438; Linker v. Herard, 13 Misc.2d 445).
The final order should be modified by reversing the judgment therein in favor of tenant on its counterclaim, and dismissing said counterclaim without prejudice to any other action thereon as tenant may be advised, and as modified affirmed, thereby permitting a recovery to landlord of $315, with $25 costs.
Concur — HECHT, J.P., AURELIO and TILZER, JJ.
Final order modified, etc.