As the tenant’s evidence would authorize a finding that the landlord had actual notice that water pipes under his control were defective prior to June 14, 1930, that it failed within a reasonable time after the receipt of said notice to repair the defects, and that by reason of such neglect the tenant’s property was damaged, it was error to dismiss the counterclaims.
It was likewise error on dismissing the counterclaims in this summary proceeding to tax costs as in an action. (211-213 West 29th Street Co., Inc., v. Gorstein, 139 Misc. 238.)
Final order, judgment and order reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, Lydon, Peters and Frankenthaler, JJ.