The landlord by oral complaint sued for rent; the tenant answered “ general denial, demands bill of particulars, counterclaim for $187.65,” and filed a bill of particulars of his counterclaim, in which it is stated that during his occupancy of the demised premises goods of the value of $187-.65 were- damaged by reason of defective plumbing in the landlord’s building, which defective plumbing was due to the neglect *715and carelessness of the landlord, and that the landlord agreed to pay the tenant $187.65 for the damages.
On the trial the tenant was prevented, under plaintiff’s objection, from showing the damage as alleged in the counterclaim, the court stating that the counterclaim in negligence could not be set up, to which ruling defendant excepted.
It is evident that defendant’s bill of particulars was drawn by his counsel with the view of obviating the objection under the Code of Civil Procedure and the former Municipal Court Act to interposing a counterclaim for negligence in an action on contract, and the ruling of the trial court was based on the provisions of those statutes.
Under the Municipal Court Code, however, which defines the present practice in that court, it is permissible to plead a counterclaim based on tort in an action on contract. Mun. Ct. Code, § 85. - And see Lauer’s Edition, 41A418.
If defendant proved, as claimed in his bill of particulars, that by reason of the negligence of plaintiff water escaped from a pipe on the premises and damaged defendant’s property the landlord would be liable for the damages irrespective of the question whether he agreed to pay such damage or not.
Although the court apparently, under the provisions of section 85 of the Municipal Court Code, has in certain cases the right to strike out a counterclaim, such power was not exercised in this case, the court excluding evidence evidently for the sole reason that it was an effort to prove a tort as against a contractual obligation.
The judgment should be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
Weeks, J., concurs; Mullan, J., concurs in opinion.