Kent v. Sibley — 25 N.Y. St. Rep. 741

Majority

p. 741

Jennie E. Kent, Pl'ff and Resp’t, v. Richard C. Sibley and Henry B. Riggs, Def’ts and App’lts.

(New York Common Pleas, General Term,

Filed June 3, 1889.)

Headnote

1. Undertaking—On appeal—Landlord and tenant—Summary proceedings—Action on undertaking—What questions mat be litigated.

In an action against the tenant and his surety on an undertaking entered on an appeal from a judgment in favor of the landlord in summary pro

p. 742

ceedings to recover possession of certain premises, by whicli the defendants bound themselves to pay all rents accruing during the appeal if the judgment was affirmed, the only questions that can be litigated in such action is the validity of the bond sued on, and the amount due for rent under the terms of the lease; and the defendants cannot be permitted to set up in their answer, as a defense, that the original lease was obtained through the fraud and misrepresentation of the lessor, and such answer is ■demurrable.

3. Appeal—Notice—How detect incubbed—Code Civ. Pro., § 1808.

Under section 1303 of the Code Civil Procedure, where an appeal has been taken in good faith, any defect may be cured.

Appeal from a judgment of the general term of the city court, affirming a judgment at special term sustaining a demurrer to the second defense set up in defendant’s answer.

The action is oh 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.

Appeal from order.

The original notice of appeal was from the judgment. The error occurred in making the copies of the notice to be served ; and, under section 1303 of the Code, where an appeal has been taken in good faith, any defect may be cured.

We, therefore, think that the order should be affirmed, with costs.