The determination of the Appellate Term directing the Municipal Court to try out the equitable *520defense of reformation should be affirmed. The Court of Appeals has held that while such matter should be pleaded as a .counterclaim when affirmative relief is necessary, the court must hear the facts when set up as an equitable defense, provided that as a mere plea in bar, they would be sufficient to answer to plaintiff’s claim. As was said in Susquehanna S. S. Co. v. Andersen & Co. (239 N. Y. 285, 291): “ The question is fairly here whether the facts establishing the need for reformation, even if not stated as a counterclaim, make out an equitable defense. The plaintiff produces a writing which in form is a contract and asks the judgment of the court that it be enforced according to its terms. The defendant answers that enforcement is inequitable because fraud or mutual mistake has brought about the result that the writing is not a true expression of the meaning of the parties. This is good as a bar, and does not cease to be good because the defendant, if it had so chosen, might have asked for something more.”
The result is not only supported by authority but is essential to the administration of summary proceedings in a court of limited jurisdiction. It is obvious that if the final order were affirmed, the tenant is remediless. A later judgment for reformation in the Supreme Court would not automatically set aside the final order. If by some subsequent litigation it could be set aside, the procedure would be cumbrous and lead to a very undesirable circuity of action.
Since the Municipal Court may determine equitable defenses and since the plea of reformation may be set up as an equitable defense, the trial court should have litigated the issue tendered by the tenant.
The determination of the Appellate Term should be affirmed.
Finch, P. J., concurs.
Determination reversed, with costs and disbursements, and judgment of the Municipal Court affirmed, with costs.