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Seventy-Eighth Street & Broadway Co. v. Arches

76 Misc. 438 Court N.Y. App. Term English

Delivered by Seabury, J.

Contents

Majority

p. 438
The Seventy-eighth Street & Broadway Company, Appellant, v. Mary Arches and Anthony Demetropulos, Respondents.
(Supreme Court, Appellate Term, First Department,
May, 1912.)

Headnote

Landlord and tenant — re-entry and recovery of possession by landlord— summary proceedings — default and payment of rent (Code Civ. Pro. .§ 2231, subd. 3).
In summary proceedings for non-payment of rent, a final order in favor of the landlord is res adjudieata that the tenants continued in possession of the premises and defaulted in the payment of rent reserved; and in a subsequent action to recover the rent defendants will- not be permitted to plead a partial eviction.
Appeal by plaintiff from a judgment in favor of defendants upon their counterclaim for entered upon the verdict of a jury in the Municipal Court of the city of Hew York, borough of Manhattan, fifth district.
Maurice Eagler, for appellant.
Bernard Gordon, for respondents.

This is an action for rent. The defendants plead a counterclaim for damages for an alleged partial evic

p. 439
tion. Against the defendants’ counterclaim, the plaintiff relies upon a final order heretofore made in favor of the plaintiff and against these defendants in summary proceedings. This final order was res adjudicate/, upon the issue as to whether the defendants, as tenants, continued in possession of the premises, and as to whether the defendants defaulted in the payment of the rent reserved. Reich v. Cochran, 151 N. Y. 122 ; Meyerhoffer v. Baker, 121 App. Div. 797 . If the defendants had been evicted, it is clear that they could not have continued in possession, and that rent was not due. To allow the defendants now to set up the defense of eviction is to permit them to controvert facts essential to the plaintiff’s right to the final order. The direct converse of what these defendants have been permitted to prove was conclusively established by the final order.

It follows that the judgment "should be reversed, arid a new trial ordered, with costs to appellant to abide the event.

Guy. and Gerard, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide "event.

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