#### J. C. Levinson and William Kamin, Defendants in Error, v. G. H. Pieser, Plaintiff in Error.

Gen. No. 20,169.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBtjy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.

Affirmed.

Opinion filed March 11, 1915.

*61Statement of the Case.

J. C. Levinson and William Kamin, on November 26, 1913, obtained a judgment by confession against G. H. Pieser for eighty-one dollars, in the Municipal Court of Chicago. The suit was brought upon a lease containing the usual confession of judgment clause for rent due under the lease; also a clause providing for twenty-five dollars attorneys ’ fees in case of judgment by confession. The lease fixed the rent due per month at sixty dollars. The plaintiff’s statement of claim alleged that the defendant owed the plaintiffs the rent for the premises in question for the month of November, 1913, less a rebate of four dollars, making the amount due for rent fifty-six dollars; and also twenty-five dollars for attorneys’ fees. On December 17, 1914, the defendant filed a motion to have the said judgment “opened up” and to allow the defendant to plead. In support of the said motion, an affidavit of the defendant was introduced. In this affidavit, the defendant alleged that the plaintiffs did not keep the said premises “in a good, comfortable and habitable condition, but on the contrary did not provide a heat and temperature of to exceed, to wit, 45 degrees, during the cold weather period covered by the time for which the rent judgment herein has been confessed. * * * Because of said facts defendant was evicted from said premises upon divers occasions, and was obliged to seek refuge in the hospitality of friends having warmer and more comfortable quarters;” and the defendant further alleged that he had been ready and willing to comply with all the terms and conditions of the said lease obligatory upon him, “including the payment of the said rent until evicted as aforesaid.” The trial court denied the motion of the defendant, who sued out error.

*62Abstract of the Decision.

Judgment, § 72 * —when refusal to open judgment by confession proper. Where the lessor of premises, pursuant to a power in the lease, entered judgment by confession against his tenant for a month’s rent, the latter’s application to open the judgment and permit him to recoup damages because of the lessor’s failure to comply with the terms of the lease as to furnishing heat, held properly denied, the allegation of the affidavit to open being most general in character, and failing to specify with certainty the facts relied upon, or to negative a provision in the lease exempting the lessor from liability for damages where failure to furnish heat was caused by unavoidable delay or inability to secure fuel.

Lewis Edward Dickinson, for plaintiff in error.

No appearance for defendants in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Scanlan

delivered the opinion of the court.