Levenson v. Johnson — 129 A.D. 30

Majority

p. 30

Samuel Levenson, Respondent, v. George F. Johnson, Appellant.

Second Department,

November 27, 1908.

Headnote

Judgment — determination of issues in summary proceeding — res adjudicata.

Where in a summary proceeding the issue that the tenant was entitled to a reduction in rent for services rendered was decided against him, the matter is res acljudicaia, and he cannot thereafter maintain an action for the value of the services.

Appeal by the defendant, George F. Johnson, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3d day of February, 1908.

P. J. Leahon, for the appellant.

Daniel T. O'Brien, for the respondent.

This is an appeal from a judgment in favor of the plaintiff in an action for services which plaintiff says were rendered while he was a tenant of the defendant, pursuant to an agreement with the defendant’s agent that the value of said services should be applied on the monthly rentals. It is undisputed that the defendant, through an agent, brought a dispossess proceeding against the plaintiff, alleging non-payment of rent; that, in that proceeding, the plaintiff alleged the rendition of said services and the agreement to apply the value thereof in payment of the rent; that the said issue was litigated and decided against the tenant; and that a final order

p. 31

was made, directing the issuance of a warrant to remove the plaintiff for non-payment of rent.

The defendant should have prevailed in this suit on the plea of the adjudication in the dispossess proceedings. The question at issue in this suit was directly involved in that proceeding; it was litigated and decided in favor of the defendant. If the defendant was indebted to the plaintiff for services rendered, the plaintiff was entitled to offset it against the. rent, irrespective of any specific agreement to that effect. It needs no citation of authority to support the proposition that an issue, once litigated between the parties, is finally settled by the judgment so long as it remains unreversed.

The judgment must be reversed.

Woodward, Hooker, Gaynor and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.