The action is for an accounting and injunction and other relief. In opposing the motion for the injunction, the defendant submitted, no affidavits, but interposed a demurrer to the complaint thereby, for the purposes of the motion and appeal, admitting the allegations of the complaint and of the moving affidavits. The plaintiff is a tenant under a recorded lease for three years from December 1, 1891, of premises at'Ho. 69 West One Hundreth street, which provides for the payment of rent in advance in equal monthly installments, but reserves to the tenant the right, in case of the owner’s default, to pay interest on mortgages covering the premises as well as taxes, water rates and assessments, and to deduct such payments from the rent then due or to become due. The plaintiff holds the lease by assignment of the original lessee through a mesne assignee. The rent for December, 1901, and January, 1902, was duly paid by the then lessee and in addition, taxes and interest on the mortgages which the owner had omitted to pay, were paid by the original lessee and this plaintiff. By April 5, 1902, when the last of said payments was made, the tenants had disbursed in all $866.20, which was sufficient to satisfy the rent, up to June thirtieth, leaving $136.20 to be applied on account of the rent falling due July first. In May the defendant purchased the premises subject to said lease and plaintiff’s rights thereunder. On Monday, June 30, 1902, the tenant paid to the Croton water department of the city of Hew York the sum of $52 for water rent. then apparently, and' as he was informed by the clerk in charge, unpaid, and a lien on the premises. In point of fact this amount had been paid by the owner three days before, but the entry had not been posted on the department’s books. In July the owner, claiming that the rent was *100unpaid since February 1, 1902, amounting to $900, brought summary proceedings to obtain possession of the premises. The present plaintiff, answering, denied that there was any rent due and set up the aforesaid payments amounting to $938.20. On the trial for the first time, it developed that the $52 water rent had been paid to the city by the owner on the Friday preceding the tenant’s payment thereof. The latter payment not being chargeable against the owner, said tenant was consequently in default on July 1, 1902, to the extent of $13.80. The tenant, desirous of preserving his lease, which is of very substantial value, immediately tendered to- the owner this amount, together - with interest thereon and costs, and, on the tender being refused, paid the same into court for her benefit. The owner also refused a tender of the August rent, which accrued pending the proceeding. Thereupon the tenant brought the present action to have an account stated between himself and his landlord, and the precise amount due for rent, disputed by the landlord, determined by a court of equity. Anticipating an adverse decision of the summary proceeding, since plaintiff was actually in default to the extent- of $13.80 at least when the proceeding was instituted, and being anxious to stay the warrant but unable to do so because the' landlord disputed the amount of rent due and refused the tender of the amount conceded by the tenant to be due, plaintiff obtained ex parte a temporary injunction staying the summary proceeding and the issuance of a warrant therein, threatened by defendant, and directing the defendant to show cause why the same should not be continued pendente lite and why the plaintiff should not be directed to pay into court the August rent and all future installments pendente lite, if they too should be refused by the landlord, and thereby and thereupon be discharged from all liability therefor. On the argument of the motion to continue the injunction, it was conceded in open court that the justice of the Municipal Court had made a final order in the summary proceeding in favor of the petitioner therein, awarding to her- possession of the premises. On the papers and such oral concession that the final order in the summary proceeding was made, the motion to continue the injunction was granted on plaintiff’s filing an additional bond in the sum of $750, thus making the defendant’s security $1,000 in all.
*101The principal question upon this appeal is whether this action for an accounting and an. injunction is maintainable. The general "rule is that a court of equity will not interfere with summary proceedings ' in a Municipal Court “ unless some peculiar equities exist which cannot be decided upon and disposed of by a court of inferior jurisdiction sc as properly to adjust the rights of the parties.” (Noble v. McGurk, 16 Misc. Rep. 462.)
Having this rule in mind, the appellant insists that the plaintiff's rights could have been determined in the Municipal Court, and refers to the enlarged powers conferred on that court by the amendment of 1893 to section 2244 of the Code of Civil Procedure (Laws of 1893, chap. 705), under which it is now permissible by answer to set up any defense or counterclaim legal or equitable “ as though the claim for rent in such proceeding was the subject of an action.” In commenting upon this amendment, McAdam on Landlord and Tenant (Vol. 2 [3d ed.] 1426) says: “By the amendment of 1893, authorizing a tenant to plead in summary proceedings any defense, legal or equitable, it was not contemplated that equity jurisdiction should attach to courts of local and inferior jurisdiction to the extent of enabling them to grant affirmative equitable relief, of the nature afforded by a cross-bill or otherwise.” And the learned author of that work might have added that the attempt of the Legislature to enlarge the jurisdiction of such an inferior court not of record would seemingly be in contravention of section 18 of article 6 of the Constitution of the State' of New York, which provides: “ Inferior local courts * * * may be established by the Legislature, but no inferior local court hereafter created shall be a court of record. The Legislature shall not hereafter confer upon any inferior or local court of its creation, any equity jurisdiction or any greater jurisdiction in other respects than is conferred upon County Courts by or under this article.”
Passing, however, the question of the extent of the equity jurisdiction of a County Court, and assuming, without deciding, that a Municipal Court, in summary proceedings has equal jurisdiction, the further statement to be found in McAdam on Landlord and Tenant (supra, 1427) is supported by abundant authority to the.effect that “ whenever an occupant in legal possession of premises requires an equitable remedy to protect his possession or enjoyment of the *102premises, he is entitled to such relief in a proper case to the extent necessary for such protection and enjoyment.”
If, therefore, the Municipal Court was without power to determine the extent of the defendant’s equities, or, having the power, should refuse to exercise it, or if, for the purpose of reaching a determination, an inquiry into the merits of the defense was necessary, then, seemingly, in order to protect the' tenant’s possession against a warrant of dispossession, a court of equity, if necessary to prevent irreparable loss, should supply the relief which the law could not, or would not, grant. Althought the District Court had the undoubted power, and it was its duty to determine, even if it involved to a certain extent some form of accounting, whether or not any rent was due the landlord, the justice of that court was not required to go to the extent of determining the exact amount that was due. His inquiry was confined and directed simply to ascertaining whether any rent was due, in which event it was his duty to issue the warrant. The cases are numerous in which it has been held that in a summary proceeding the question to be determined is not how much rent is due, but whether there is any rent due. (Jarvis v. Driggs, 69 N. Y. 143; Sheldon v. Testera, 21 Misc. Rep. 477; Bennett v. Nick, 29 id. 632; Spiro v. Barkin, 30 id. 87.)
In Jarvis v. Briggs (supra) it was held that “ If any rent whatever is due and unpaid, and there is a holding over by the tenant without permission after demand, the landlord is entitled to a warrant of dispossession. * * * The allegation in the affidavit as to the amount of rent due does not conclude the tenant. The judgment does establish that some rent is due, but it does not determine the amount.”
Here the tenant concededly owed some small amount, and this was due to a mistake innocently made in paying the water rent after the landlord had himself paid it. By the terms of the lease, upon default in the payment of interest oh mortgages, taxes and water rates, the tenant was at liberty to pay the same, and deduct the amount so' paid from the rent next accruing and payable. Having gone to the office of the water register and been informed. that the water rents were not paid, amounting to about fifty dollars, the tenant paid them and assumed the right to deduct that amount from the rent. Upon the trial in the summary proceedings, it appeared *103that some three days before such payment by the tenant the landlord had himself paid the same water rent. It is, therefore, conceded as stated that some small amount of rent will be found due by the tenant, and this will be sufficient to require the justice to issue his warrant in favor of the landlord. He is not required to determine the amount, nor is he obliged to take up the matter of the accounting between the parties in such a way as to determine what is due, and yet it is only by having such amount determined, and a tender of payment of the same made before the warrant issues, that the tenant can retain possession of the premises.
To protect such rights, therefore, it is essential that in some forum the actual amount which the tenant is to pay shall be determined, and, if an accounting is necessary between the parties for that purpose, it follows that in some forum it must be had. And, as the judge in the Municipal Court is not bound to take it for the purpose of determining the exact amount, the tenant is obliged to look elsewhere for relief in a case where the determination of the amount is essential for the protection and safeguarding of the tenant’s possession.
The determination of the exact amount due, which is essential to the plaintiff’s remedy, and which the Municipal Court is not obliged to make, furnishes the reason, where an accounting is necessary for that purpose, as here, for resort to a court of equity, for, it must be remembered in this connection, it is only after such a determination is made that the tenant can exercise the rights which are conferred upon him by statute. Thus section 2254 of the Code of Civil Procedure, subdivision 1, gives to the tenant the absolute right to stay the issuing of an execution of a warrant of dispossession by paying to the landlord the rent due with interest and the costs of the summary proceeding. Evidently, however, the amount due can neither be tendered nor paid until it is in some way ascertained; and we think, therefore, that were the only ground of equitable intervention the fact that the Municipal Court is not bound to determine the rent due, that would be sufficient. As said in Sheldon v. Testera (supra): “We do not overlook the embarrassment which may result from the inconclusiveness of the justice’s finding as to the amount, of rent due, when it comes to question of payment or security to stay the warrant (Code, § 2254) or to redeem *104the premises (Code, § 2256). * * * But the tenant is not remediless, for a court of equity may be resorted to, if need be, to determine the amount of payment or security required and in case of redemption the Code gives the justice equitable powers broad enough to protect the rights of all parties.”
In the case at bar the amount of the rent overdue, taking the tenant’s version, is small. But, even if it is greater than such sum, to ascertain the exact amount will involve an accounting as there is question- as to what, if any, credits shall be allowed the present tenant on account of payments for interest, etc., made by the former tenant. If the judge in the Municipal Court decided that question, it would not be conclusive upon the parties, because not essential for his determination. Until the- amount can be definitely determined, so as to be binding upon both, there is no provision of law under which the tenant can exercise his statutory right to pay the amount due and, unless resort can be had to a court of equity, he is remediless.
The lease is thought to be valuable and the tenant has been diligent in his efforts to protect it and the conditions imposed to secure the landlord are sufficient for the purpose. The merits, therefore, are with the tenant, and the sole question to which we have directed our discussion is whether or not a court of equity has power to intervene for his protection.
For these reasons, I dissent.
Hatch, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.