Grafton v. Brigham

This action was for rent against the assignees of the original tenant. The complaint sets out the lease and the assignment thereof to the defendants “subject to the covenants therein contained.” It is then averred as follows:

“That thereupon and thereunder the defendants entered into occupation and possession of said premises under the terms and conditions of said agreement, and did attorn to, pay rent under and as provided by said agreement for the premises aforesaid to this plaintiff as their landlord.”

The defendants admitted the facts thus averred, and their sole defense was, that before the rent here claimed became due, they in their turn assigned the lease to one Chapin and vacated the premises, Chapin thereupon entering into possession and attorning to the plaintiff.

Hpon the trial the defendants gave evidence tending to establish the facts thus affirmatively pleaded, and the plaintiff, in rebuttal, put in evidence the judgment of a District Court dispossessing these

The first objection was based upon an irregularity in the service of the precept in the summary proceeding. It must be conceded that the precept was not served according to law, but the irregularity in that respect was cured. The record shows that the tenants appeared generally upon the return day, and that the justice thereupon wrote upon the back of the precept, “Answer to be filed by 11 a. m. If not filed, judgment to be signed; if filed, to be adjourned to 13th.” The city marshal who had charge of the proceedings also testified that there was an attorney who appeared for the tenants. There was thus a waiver of any defect in the service of process, and jurisdiction to proceed was conferred upon the justice. A magistrate in these proceedings can acquire jurisdiction of the person by consent though not, of course, of the subject-matter. (McCarthy v. Noble, 5 N. Y. Leg. Obs. 380 ; Campbell v. Mallory, 22 How. Pr. 189 ; and see Sims v. Humphrey, 4 Den. 185 ; Nemetty v. Naylor, 100 N. Y. 569 .)

No attempt was here made to dispute this appearance or to show that it was unauthorized. The judgment was, therefore, jurisdictionally valid.

The other point is equally untenable. It was distinctly held in Brown v. The Mayor ( 66 N. Y. 385 ), that a judgment taken by default in these summary proceedings, until reversed, set aside or vacated, is conclusive (in an action by the landlord against the tenant to recover the rent) of the facts alleged in the affidavit and which are required by the statute to be alleged as the basis of the proceedings. In the proceedings under consideration the essential facts alleged in the landlord’s petition and affidavit were the original lease, the assignment thereof. to the defendants, their entry and attornment thereunder, the amount of rent due and the holding over without permission after default. As to all these facts (except the amount of rent 'due) the judgment was conclusive. Even as to the amount due, Brown v. The Mayor, would seem to be in point. It was held, however, in Jarvis v. Driggs ( 69 N. Y. 147 ), that this

Be that as it may, however, the judgment is clearly binding upon the question of the defendants’ liability as assignees in possession. In other words, upon every fact alleged in the landlord’s affidavit except as to the amount of rent. The general doctrine enunciated in Brown v. The Mayor, is not' questioned in Jarvis v. Driggs, and it has since been reaffirmed in many cases (Leavitt v. Wolcott, 95 N. Y. 222 ; Blair v. Bartlett, 15 id. 153; Nemetty v. Naylor, 100 id. 570).

The judgment under consideration certainly depended upon the original lease, the assignment thereof to the defendants, and the fact that they held over and continued i/npossession of the demised premises without the permission of the landlord. As to these facts they are estopped from questioning the judgment, and such facts are conclusive in favor of the plaintiffs right to recover the rent reserved in the lease prior to the dispossession. The defendants had an opportunity of showing before the justice that they were not assignees in possession, that in fact they had assigned the lease and vacated the premises, and that their assignees were in possession, but they did not choose to avail themselves of this defense. As was said in Brown v. The Mayor, they were “ informed of the claim made ” against them and they were “ called upon to contest it.” They could have absented themselves if they desired to question the service of the precept. Or they could have appeared and objected to such service. But they did neither. They simply appeared, without mating any objection or interposing any defense upon the merits. Under such- circumstances the judgment is conclusive upon their liability as assignees in possession. Being 'so concluded, they are liable on all covenants that run with the land. Thus, they are liable for the taxes as well as for the rent proper, for

It was not necessary to put the original lease in evidence, as it was admitted by the pleadings. The assignment to, and attornment by, the defendants were also admitted. That being so, the unpaid rent and taxes wereprvma facie due and payable by the defendants,' and the plaintiff was not called upon to furnish any other proof upon that head. To absolve themselves from tbe liability arising upon this state of facts, tbe defendants were bound to show that at the time when tbe rent and taxes became due, under tbe terms of tbe lease, there was no longer any privity of estate between themselves and tbe plaintiff. In other words, that they bad then assigned tbe lease and vacated tbe demised premises. This, however, it was impossible for them to show, because tbe very reverse was conclusively established by tbe judgment in tbe summary proceeding.

It follows that tbe verdict should have been for tbe plaintiff and not for the defendant. Tbe judgment should, therefore, be reversed and a new trial ordered, with costs to tbe appellant to abide tbe event.

Yan Brunt, P. J., and Follett, J., concurred.

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