These proceedings were brought for the removal of the above-named tenant, and under-tenant, respectively, from the premises known as No. 561 West One Hundred and Eighty-second street, in the borough of Manhattan, upon the ground that they held over after the expiration of the term of a lease, for three months, made to the former by the landlord’s predecessor in title. The tenant alone defended, and her amended answer, while admitting the fact of possession, denied all the other allegations of the petition. Eor a separate defense, it was alleged that the petitioner’s interest in the premises was not that of an owner, but, equitably, of a mortgagee, and that she, the tenant, a former holder of the fee, was entitled to a conveyance of the property upon payment of a certain sum by way of redemption.
In the course of the allegations of this defense, the fact that the tenant had entered into possession under the lease, pleaded bythe petition, was set up, and the justice thereupon made a final order in favor of the landlord, holding that the affirmative defense could not be entertained, because proceeding for equitable relief, and that the admission of possession by virtue of the lease, as set forth in the separate defense, concluded the question of holding over and completed the landlord’s case.
*755It would seem that the ruling against the admissibility of the defense was correct, since there was no dispute as to the regularity of the landlord’s legal title, and the tenant’s success could only result from the court’s affirmative finding that the title rested in her; that the petitioner’s deed, although a conveyance in law, was equitably a mortgage, and that the tenant was entitled to a conveyance upon mating a payment such as was tendered.
Thus the tenant sought actual equitable relief, and this was beyond the power of the court below to afford, its jurisdiction to entertain equitable defenses being limited to cases where the defense is of a nature cognizable in a court of law, and not calling for the exercise of jurisdiction peculiar to a court of equity. Rodgers v. Earle, 5 Misc. Rep. 164; Constant v. Barrett, 13 id. 249; Bien v. Bixby, 18 id. 415; Matter of Hattersley v. Cronyn, 22 id. 259. But, conceding the propriety of the conclusion reached by the justice, so far, still the case was improperly disposed of upon the pleadings, since there was an issue as to the nature of the tenant’s possession, raised by the general denial, and the allegations of the answer, touching the existence of the lease, did not make the petitioner’s case complete.
The tenant set up the lease as a part of the separate defense, and, therefore, the allegation did not operate to aid the petition, in the face of the general denial (Balmford v. Grand Lodge, 19 Misc. Rep. 1; Fox v. Held, 24 id. 184), and, as an admission, this allegation was not conclusive, in any event, unless the whole defense were admitted for the purposes of the pleading, and the tenant could still give proof in' explanation of the admission. Young v. Katz, 22 App. Div. 542.
Accordingly, the final order must he reversed, but, in view of the fact that no probability of the tenant’s success upon a new trial is apparent, a motion for restitution should not he entertained.
The final order should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.
Beekmae, P. J., and Gildersleeve, J., concur.
Order reversed and new trial ordered, with costs to appellant to abide event.
Note.— The rest of the cases of the January Appellate Term will he found in the next volume, 26 Misc. Rep.— [Rep.