I assume for the present that on and before July 5, 1882, Becker was tenant from year to year of Church; that on that day a paper was executed between the parties which purported to change such tenancy to a tenancy at will; that such paper was, as the referee finds, obtained from Becker by fraud. Thereupon, in May, 1883, Church served a notice to quit upon Becker, pursuant to the statute to terminate a tenancy at will, and proceeded to take summary proceedings thereunder to dispossess Becker.
Now upon those proceedings, that paper would have been proof against Becker that he was such tenant at will. Could he in those proceedings have shown that that paper was obtained by fraud ? Is he, therefore, forbidden to maintain this action, which is brought both to set aside and cancel that paper, and also to restrain the summary proceedings? Now I suppose that an action in equity will be maintained for the purpose of setting aside and canceling an instrument affecting title to land and obtained by fraud. (Pomeroy’s Eq., §§ 110, 399; Story’s Eq, §§ 691, 700; Potter’s Willard’s Eq , m. p., 301.)
As part of the remedy, actions or proceedings on the fraudulent instrument will be enjoined. But could the county judge try the question of fraud in the obtaining of the instrument ? He has jurist diction to pass on the legal title only, and not on an equitable title. (Terrett v. Cowenhoven, 11 Hun, 320; People ex rel. Ainslee v. Howlett, 13 id., 138.) This latter case was affirmed (76 N. Y., 576), and the decision there, made by only four out of seven judges, goes to -the point that the defendant, by alleging facts, showing that the *260so-called lease was void for usury, set up a defense that denied the conventional relation of landlord and tenant, and that such an issue should have been tried by a jury.
Now, if we look at the Code (sec. 2244) it will be seen that the person against whom summary proceedings are taken may put in an answer denying generally the allegations, or specifically, any material allegation. He is, therefore, limited to denials. And there is no provision for affirmative allegations. Suppose, then, that the petitioner alleged a tenancy at will, and the respondent denied it. On the trial of that issue could the respondent have been permitted to show that the alleged lease was obtained by fraud, and was, therefore, voidable, not void, as in a case of usury ? I find no case where it has been held that any question, such as here arises, can be tried in summary proceedings.
It seems to me then that if the alleged instrument was obtained by fraud, as it affected Becker’s title to land, he might maintain an equitable action for its cancellation, and as a part of the relief therein, might restrain proceeding upon it. Nor do I think that fraud in obtaining an alleged lease is an issue to be tried in summary proceedings.
As my brother Bookes concurs with me in the former of these two propositions, the judgment is affirmed, with costs.