Action by tenant against landlords to recover damages to personal property by reason of the defective condition of the demised premises. Defendants moved for summary judgment on the ground that in a summary proceeding in a Justice’s Court in which the defendants in the present action sought to dispossess the plaintiff herein, and for a judgment for arrearages of rent, the plaintiff herein interposed a counterclaim for the same items of damage sued for in the present action, aggregating the sum of $1,018.03; when the justice of the peace erroneously refused to entertain jurisdiction of a counterclaim in excess of $200, the plaintiff herein offered no proof in support of his said counterclaim, and judgment was given in the landlords’ (present defendants) favor for the possession of the premises and $100 rent. The Special Term granted defendants’ motion for summary judgment on the ground that the judgment of the Justice’s Court is a bar to the present action. Order of the County Court of Suffolk county reversed on the law, with ten dollars costs and disbursements, and defendants’ motion denied, with ten dollars costs. The justice of the peace having refused to entertain jurisdiction of the plaintiff’s counterclaim in the summary proceeding, and the plaintiff herein having offered no proof in support thereof, and the summary proceeding having proceeded to judgment solely upon the landlords’ petition and proofs, we think that the counterclaim was, in effect, withdrawn, and that the plaintiff has a right to maintain this action to recover for the items of damage alleged in said counterclaim. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.