The plaintiff sued to recover a sum certain, deposited with the defendant as security for rent of certain premises, from which she removed and into which the defendant re-entered within, the time of the service of the precept to dispossess and the execution of the warrant therefor. The defendant counterclaimed for rent that had accrued and become payable by the terms of the lease on the first day of the month, and prior to her repossession of the premises. This was her right, notwithstanding the termination of the lease by summary proceeding, for “ at common law the lease must expire before an action can be brought, and then debt is the proper action.” Norton v. Vultee, 1 N. Y. Super. Ct. 384, 389. The judgment for the plaintiff for the amount of her deposit, less the value of her use and occupation, was error.
The judgment should, therefore, be reversed and judgment should be ordered in favor of the defendant upon her counterclaim, with costs.
Judgment reversed, and, as there is no dispute as to the facts, judgment for defendant ordered for amount of her counterclaim, with costs.