
    Louisa Frank, Respondent, v. Mary Miller and Jacob Miller, Appellants.
    Second Department,
    January 25, 1907.
    ' Landlord and tenant — When prior summary proceedings not res adjudicata in second proceeding—defense defined.-
    It is no defense to summary proceedings brought to dispossess a tenant for failure to pay a month’s rent to .allege that the landlord's predecessor in title had leased the premises to the tenant for a year. Evidence of such prior lease would be irrelevant to the issue, as ic does, not show that the tenant had not subsequently entered into a new lease with the new owner. •
    It follows that a verdict for the tenant in such former proceeding is not an adjudication that the tenant holds a yearly lease, for the jury could not pass upon that question in the proceeding.
    Facts provable under a denial do not constitute a defense. A ‘ ‘ defense ” is. new matter. A defense is not a negative, but .an affirmative allegation of facts Which, if the complaint be taken.as true, will nevertheless defeat the action, .
    
      Appeal by the defendants* Mary Miller and another, from a final Order of the County Court of Westchester county, entered in 'the office of the clerk of the county of Westchester on the 27th day of January* 1906, upon the verdict of a jury removing the defendants from certain real estate in summary proceedings, and also from an order entered ip said, clerk’s office on the 26th day of February, 1906, denying the defendants’ motion for a new trial made upon the minutes. - :
    A final order in her favor in a’ former summary proceeding brought by the landlord, against her for'non-payment of rent was pleaded as res adjudieala by the tenant, and the roll in that proceeding was received in evidence, and also the docket of the justice before whom it was tried. ■
    
      Edward W. Davidson, for the appellants.
    
      Samuel F. Swinburne, for the respondent.
   Gaynor, J.:

The landlord had instituted a prior proceeding in December, 1905* against'the tenant to remove her for the non-payment of the rent which came due the first day of that month. The petition alleged that the. landlord let the premises to the' tenant for one month on November 1st, 1905,. for the 'rent of $16.50, and from month to month thereafter at $30 a month, and that the rent for December was Unpaid. The tenant filed an answer which made a general denial to the petition, and then alleged as a defence ’’ that .the landlord’s predecessor in title had leased to her the premises on October 15th, 1905* for one year at $16.50"a month. •

This allegation of a lease up to October 15th, 1906, was not a “ defence” in the pleading meaning of that word, but only a useless recitation of facts intended to show, but which were incompetent to show, that -she had not entered into a lease with the petitioner On November 1st, 19Ó5, and was not in default thereunder for December’s rent, which was the issue framed by the denial of the petition, The petition alleged that the petitioner had made a lease ,to the tenant apd that the latter .was in default for December’s rent thereunder, and that was the issue". For the tenant to prove that the premises had been leased to her by the former owner was irrelevant to the issue; it would not be evidence that she had not subsequently entered into a new lease with the new owner, the petitioner. And if it were competent on that issue the case would not be changed. A defence cannot be of facts that may be proved under a denial; it can only be of new matter, i. <?., facts outside of the issues that are or may be raised by a denial (Code Civ. Pro. sec. 500). A defence ” •is not a negative; that is the quality and office of a “denial.” A defence is affirmative, can only be affirmative, i. e., an allegation' of facts which if the complaint be taken as true in all particulars nevertheless defeats the action (Schultz v. Greenwood Cemetery, 46 Misc. Rep. 299, and cases there cited). This tenant may have had a lease with the former owner, but if she subsequently made a lease with the petitioner, the fact of the former lease could not defeat the said former proceeding; it was wholly irrelevant.

There was therefore no such issue as that the tenant had a lease up to October 15th, 1906, and hence that fact could not have been adjudicated in the first proceeding. It does not matter what the jury tried to couple with their verdict; they could give no verdict except on the issue before them. They could go no further, as they tried to, and find that the tenant had a lease up to October 15th, 1906, from the former owner. The justice properly entered a simple verdict for the tenant. It follows that the adjudication in that proceeding was not res adjudioata of the issue in the present one, in that it adjudged that the tenant had a lease up to October 15th, 1906; the present proceeding having been begun January 2nd, 1906, for holding over after expiration of term, and being based on a notice served by the landlord on the tenant on December 1st that the term would end with that month. This is the only respect in which the said adjudication has been claimed before us- to be res adjudioata, and we therefore do not' examine it in any other.- , The final order should be affirmed.

Woodward and Rich, JJ., concurred; Hirschberg, P. J., and Miller, J., concurred in result.

Final order of the County Court of Westchester county affirmed, with costs.  