Van Every v. Ogg

McKinstry, J.: A summary action against a tenant holding over. The only question argued here is the sufficiency of a counter-claim in ■the answer, as against a demurrer by plaintiff that the counterclaim does not state facts sufficient to constitute a defense or counter-claim, and that it is ambiguous, uncertain, and unintelligible.

The counter-claim is as follows:

“I. That on or about the eighth day of May,1878,the defendant leased the premises described in the amended complaint of and from the plaintiffs, at the monthly rental of forty dollars per month, and said premises were intended at the time of renting thereof to be used and occupied by the defendant as and for a lodging-house, and there was no agreement that the defendant should repair the premises.

“II. That said term commenced on the first day of June, 1878, and on that day the defendant entered into possession of said premises under said lease, and has ever since that time occupied the same thereunder.

“ III. That at the time of the making of said lease, and the defendant entering into the possession of said premises thereunder, said premises were dilapidated, and by reason of such dilapidation, the same were unfit for the occupation of human beings, and subsequently thereto, said premises became more delapidated and out of repair, without any fault or neglect of the defendant, so that the same were and have been, since the first day of June, 1878, and especially during the rainy season since that time, unfit for the occupation of human beings, by reason of the falling rain leaking through the roof and walls [565]of said house, by reason whereof, the defendant was deprived of the rooms in said house for lodging or other purposes, and the bedding; window-curtains, carpets, and other furniture therein were injured by the water so leaking through said roof and walls to the damage of the defendant in the full sum of one thousand dollars damages.

“ IV. That the defendant gave notice to the plaintiffs from time to time during the rainy season, since the first day of June, 1878, of said dilapidation, and the injury to defendant by reason of the water leaking through said roof and walk and from time to time said plaintiffs promised to repair said house so as to prevent such leaking, but they failed and neglected to do so.

“ V. That the cost of making the repairs at any time during the occupancy of said premises of the same, would have been not less than two hundred dollars or thereabouts.”