A lease in due form was executed and delivered by the parties for the letting by the plaintiff and the hiring by the defendant of an apartment on the west side of *196the fifth floor of the plaintiff’s house. Possession was not taken by the defendant, who claimed he signed the lease supposing it was for an apartment on the east side. This supposition was set up as a defense in his answer, containing also allegations that the plaintiff, through her agents, had perpetrated a fraud upon him and had fraudulently made out a lease for premises different from those intended. The judgment recovered by the plaintiff upon a former trial was set aside on appeal because of rejection of testimony offered to support this defense of fraud, the court holding .that, though fraud may not be proven in the Municipal’Court as a basis for affirmative relief, it is always available as a defense to a claim founded upon contract.
The court has- now in turn to reverse the judgment recovered against the plaintiff because of failure upon full opportunity had to establish the defense of fraud. Finding no fraud, the learned trial justice gave judgment to the defendant dismissing the complaint “ on the ground that there was a clear and distinct misunderstanding, if not on the part of both of the parties, clearly upon the part of this woman,” the wife and agent of the defendant; “ there was clearly not a meeting of the minds of the parties or mutuality in the execution of this instrument.” The court below thus attempting cancellation of a written instrument under seal on the ground of execution under mistake, which is not within the powers conferred upon the Municipal Court (Mun. Ct. Act, § 1), and assuming cognizance of a jurisdiction expressly denied (Mun. Ct. Act, § 2, subd. 2), the judgment must be reversed.
Judgment reversed, with all costs to the appellant.
(Jildebsi/eeve, J., concurs.