VAN WYCK, Ch. J.
The landlords, plaintiffs, sue for unpaid rent of the first flat of an apartment house, and the tenant, defendant, sets up as his second separate and distinct defense that he was evicted by plaintiffs' maintaining a disorderly house in and about the premises mentioned in the complaint and demised to him.
The plaintiffs, upon an affidavit of their agent denying the maintenance of such disorderly house and the pleadings, moved to strike from the answer this alleged defense upon the ground that it was scandalous, irrelevant and redundant; but such a motion must stand or fall upon the pleadings, and the rulings upon the evidence under the pleading as limited by the bill of particulars must be left for the judge at trial.
This alleged defense is not insufficient in law, and under the same, even as limited by the bill of particulars, defendant may offer evidence which must be admitted, even though the disorderly house was not maintained in the flat demised to defendant, for it must be remembered that of an apartment house the landlord retains control of the hallways and staircases. The order must be reversed, with costs, and the motion denied, with ten dollars costs.
McCARTHY, J., concurs.
Order reversed, with costs, and motion denied, with ten dollars costs.