Opinion
June 13, 1949.
In an action at law for ejectment, defendants interposed a counterclaim for the value of the improvements they made in good faith, in the belief that they had title to the property and without knowledge of the claim of title by plaintiff. Plaintiff appeals from an order denying her motion (1) for judgment on the pleadings; (2) to dismiss the counterclaim for insufficiency; (3) to strike out the counterclaim as not being properly interposed in this action. Order affirmed, with $10 costs and disbursements. In our opinion defendants have pleaded an equitable counterclaim, based on the claim that plaintiff acquiesced in the building after she had knowledge of her rights. In such circumstances, defendants are not limited merely to the offset provided by section 1011 of the Civil Practice Act, but may recover the value of the building. ( Higgins v. O'Donnell, 254 App. Div. 877.) Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur. [See post, p. 961.]