Kent v. Sibley — 15 Daly (N.Y.) 298

Majority

p. 298

Jennie E. Kent, Respondent, against Richard C. Sibley et al., Appellants.

(Decided June 3d, 1889.)

Headnote

An undertaking, given in another state, on appeal from a judgment in summary proceedings in favor of a landlord, provided that the tenant “shall answer for all rents that may accrue during the pendency of the writ of error, or which may be due at its final disposal.” Held, that fraud in inducing the tenant to enter into the lease was not a defense to an action on the undertaking.

Appeal from a judgment of the General. Term, of the City Court of New York affirming a judgment of that court sustaining a demurrer to a defense set up in defendants’ answer.

The facts- are stated in the opinion.

Le Barbier & Brewster, for appellants.

Pelton & Poucher, for respondent.

The action is on an undertaking on appeal from a judgment in summary proceedings in favor of a landlord, rendered in a justice’s court in Connecticut. The judgment was affirmed, Hence this action' on the under

p. 299

taking, which provides that Sibley (the tenant), “ shall answer for all rents that may accrue during the pendency of the writ of error, or which may be due at its final disposal.”

As a second defense to the action, defendant Sibley set up fraud in inducing him to enter into the lease. This would be a good defense to an action for rent on the lease, or ground for an action to set aside the lease, but is no defense to this action on the undertaking, by which the defendants bound themselves to pay all rents accruing during the appeal. The only questions which can be litigated in such an action are the validity of the instrument sued on, and the amount due by the terms of the lease.

The judgment should therefore be affirmed, with costs.

Larremore, Ch. J., and Allen, J., concurred.

Judgment affirmed,- with costs.