Engel-Heller Co. v. Henry Elias Brewing Co. — 74 N.Y.S. 934

Majority

p. 934

ENGEL-HELLER CO. v. HENRY ELIAS BREWING CO.

(City Court of New York, General Term.

December, 1901.)

Headnote

Process—Service—Regularity—Presumption.

The return of service of a precept in dispossess proceedings against two parties stated that service was had by affixing a true copy thereof to the door, etc. There was no showing that only one copy was affixed. Heim that, in the absence of such showing, it will be presumed in support of a judgment that one copy was placed upon the door of the premises for each of the persons against whom possession was demanded.

Appeal from special term.

Action by the Engel-FIeller Company against the Henry Elias Brewing Company. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Argued before CONLAN and HASCALL, JJ.

Paslcusz & Cohen (Martin Paskusz and William S. Gordon, of counsel), for appellant.

Dittenhoefer, Gerber & James (David Gerber, of counsel), for respondent.

The action -was brought to recover the rent of certain premises leased to one Samuel Levy, and the lease thereafter .assigned to the defendant, with the consent of the lessor indorsed dn writing as follows, namely: “I hereby consent to the assignment ■of within lease to the Henry Elias Brewing Company.” In default •of payment of the rent thereof, dispossess proceedings were instituted, and resulted in a j'udgment in favor of the landlord for the possession of the premises. It is the contention of the defendant that, because of certain alleged defects in these proceedings, the judgment rendered therein was not res adjudicata as to this defendant, so far as to fix his liability for the unpaid rent to the time when possession was re-established in the landlord. That issue, we are obliged to say, was determined in the other tribunal in favor of the landlord; and, the defendant having had his day in court, he became bound by the judgment rendered. We think that the objection raised to the regularity of that proceeding on the ground that two written copies of the precept -were.not placed upon the door of the premises, one for each of the persons against whom possession was demanded, was unfounded in fact, because the record does not show that such was the case. The affidavit of service thereof is in the following words: “Fie did serve the within precept on Samuel Levy and the Henry Elias Brewing Company, the tenant herein, by affixing a true copy thereof,” etc. And we may not infer that only a single copy was, therefore, affixed. In the absence of any evidence to the contrary, we are bound to presume that there was done in this particular all that was required. The judgment of the other tribunal was conclusive as to fixing the liability of the defendant. Grafton v. Brigham, 70 Hun, 131 , 24 N. Y. Supp. 54 .

There was no dispute as to the amount of the rent due, and, for ,tlie reasons stated, we think that the direction of a verdict was right,

p. 935

and should not be interfered with. Judgment and order appealed from affirmed, with costs.

Judgment and order affirmed, with costs.

HAS CALL, J., concurs.