
    John von der Born, Respondent, v. Anton Schultz, Appellant.
    Second Department,
    March 2, 1906.
    Bes adjudicata—when former judgment in summary proceedings in landlord’s favor bars action by tenant to recover sums advanced on option to purchase.
    When in an action by a former tenant to recover from His. landlord sums alleged to have been paid under an option to purchase, which sums were to be returned or applied on the rent if the tenant elected not to purchase, it is shown that subsequent to the alleged payments the landlord obtained a judgment of dispossession against said tenant in. summary proceedings, the same is res adjudicata against the plaintiff’s claim, as the alleged possession by the landlord of the plaintiff’s money would have been a complete defense in said, proceedings and was comprehended in the issues.
    Appeal by the defendant, Anton Schultz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 8th day of May, 1905, upon the verdict of a jury. ‘
    
    
      ' The- action was to recover' .$10,000 and interest alleged to have been paid by the plaintiff to the defendant in installments between February 1, 1895, and January 10, 1899, on an option to,.purchase real property of which he was tenant of the defendant,
    . Pn January 7, 1892, the defendant made a written lease to the plaintiff of real property in the city of New York for a term of' twenty-one years from May first following at the.rent of $2,100 a year payable in equal monthly sums-on the first, day óf each month.’.On February 1, 1895, the parties entered into a supplemental written agreement modifying the said'lease, and giving to the plaintiff during the tenancy “ the privilege, to purchase the said premises so demised at any time before January 1,. 1900,” for $35,000, by paying not less than $7,000 in cash, on faking title and giving back his bond and mortgage for the balance.’ ■ -
    - The complaint alleges that the' plaintiff paid to the defendant various installments between the making of the said agreement and January 1, 1900, amounting to .$10,000,. “ with the express understanding and upon the express agreement that if .plaintiff should, not elect to purchase the said premises, then said sum of Ten thousand ($10,000) dollars, should be returned to plaintiff with 6 per cent interest thereon, or be applied upon the rent under tiré aforesaid lease.” The plaintiff testifies that an oral agreement to this. effect” was made between -them, and the defendant testifies to the contrary,.
    The.complaint also alleges that the’ plaintiff did not elect to'purchase in the time limited,, and “ that plaintiff thereupon; and in the year 1900 and also’ subsequently, demanded a return' of the said ■ sum of Ten thousand ($10,000) dollars with interest, or in default thereof that the'same be applied upon the rent to become due Upon the said premises,” and that, the defendant refused either to, return it or so apply- it.
    This action was. brought in November, 1903, viz., after the lapse of nearly four years after the time of the purchase option had expired., . . ,
    Other facts are stated in the opinion.’
    
      Brainard Tolles [Garrard Glenn and George W. McAdam with him on the brief], for the appellant. ■
    
      Robert C. Beatty, for the respondent.
   Gaynor, J.:

The defense in bar óf a former adjudication was made out.

There is evidence by the plaintiff that after the purchase period had expired he spoke to the defendant about the $10,000, and that he denied that he liad received it or any sum of the plaintiff on the purchase option; but there is no evidence that the plaintiff made the demand for the return thereof or that it applied on the rent, which is alleged in.the complaint. On the contrary, he testifies that he told the defendant that we could take it out of the rent,” and he repeats several times that he elected to have it applied on the rent. Moreover, his election was not necessary — indeed he had no right of election — for by the alleged oral agreement under which it was paid, as the plaintiff claims, it was to be held by the ’ defendant and applied on the rent as it came due if the plaintiff did not take title under the purchase option, unless the defendant chose to pay it back with interest at six per cent.'

This being the contract relation between the parties, the defendant showed that lie had on January 4, 1901, in the Municipal Court of the city of ¡New York, begun landlord and tenant proceedings under the statute to remove the plaintiff from the demised premises for non-payment of the rent which came due under the lease of ¡November 1 and December 1,1900, and January 1,1901, and on due service of the precept on the plaintiff, and his appearance and consent on the return day, obtained a final order therein of removal, upon which a warrant was issued, but not executed because the plaintiff paid the rent in arrears, and he has continued in possession and paid the rent ever since.

This adjudication imports absolute verity, and is conclusive evidence that the plaintiff owed the defendant the rent alleged to be due in the petition, and that the defendant-had the right to remove him for non-payment thereof, for that could not be the case if the defendant then had in his hands $10,000 of the plaintiff which he held by contract between them for the payment of the rent as it came due. That would have been a complete defense, and was necessarily comprehended in the issue whether the plaintiff was in arrears for rent and could be removed therefor (Nemetty v. Naylor, 100 N. Y. 562; Reich v. Cochran, 151 id. 122; Barber v. Kendall, 158 id. 401; Brown v. Mayor, 66 id. 385).

Apart from the foregoing, a.careful reading of the evidence shows that the case is a grave one for the consideration of a motion to set the verdict aside on the ground of the weight of evidence, and the ■ suggestion by this court on that head when the case was here before (104 App. Div. 94) should be heeded..

The judgment should be reversed. . ■ .

- Hirsohberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Judgment reversed and new trial granted.!  