Kent v. Sibley — 5 N.Y.S. 447

Majority

p. 447

Kent v. Sibley et al.

(Common Pleas of New York City and County,

General Term.

June 3, 1889.)

Headnote

Bond—Defenses to Action.

In a suit on an undertaking, on appeal from a judgment in summary proceedings in favor of a landlord, conditioned that the tenant will pay all rents accruing pending appeal, on affirmance of the judgment, it is no defense that the tenant was fraudulently induced to enter into the lease.

p. 448

Appeal from city court, general term.

Jennie E. Kent sued Richard C. Sibley and H. B. Biggs on an undertaking given on appeal in the city court of New York. Plaintiff demurred to defendants’ second defense, and the demurrer was sustained. The general term of the city court affirmed the judgment, and defendants appeal.

Argued before Larrehore, C. J., and Allen, Bookstaver and Daly, JJ.

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 undertaking, 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. All concur.