
    The Dry Dock, East Broadway & Battery Railroad Co., Resp’t, v. The North & East River Railway Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed March 14, 1893.)
    
    1. Lease — Estoppel by judgment.
    In an action on a lease for an instalment of rent,payable quarterly in advance, a former judgment between the same parties on the same instrument, in an action for rent, which determined that an instalment fell due on the first of March, establishes the fact that another instalment was payable on the first of December.
    2. Corporations — Proof of incorporation.
    Proof of corporate capacity is not necessary unless it be challenged by an affirmative allegation of no corporation.
    3. Contract — Pleading—Payment.
    In an action for money on contract/, when the complaint alleges nonpayment, a mere denial raises no issue as to the fact of non-payment.
    Appeal from judgment on verdict by direction of the court.
    
      L. Laflin Kellogg, for app’lt; James & Thomas H. Troy, for resp’t.
   Pryor, J.

On the 15th February, 1890, the plaintiff, for a stipulated rental of $1,500 a year, payable quarterly in advance, let to the defendant the privilege of running its cars on plaintiff’s railroad tracks, “ payments commencing from the time the said party of the second part shall exercise or avail itself of the consent and privilege hereby given.” On an allegation of a default by defendant to pay an instalment of rent due 1st of December, 1891, plaintiff brought this action to recover $375. Putting in evidence the agreement called a “ lease,” and a former judgment between the parties, plaintiff rested; and, thereupon, defendant moved to dismiss the complaint for defect of proof of liability under the lease and of rent due on the 1st of December. Upon denial of the motion the defendant offered no evidence, and the court directed a verdict for the plaintiff.

Appellant’s contention that no right of recovery was shown is clearly untenable.

In a former action between the same parties upon the same instrument, plaintiff recovered an instalment of rent which became due on the first day of March, 1891, in advance for the quarter then commencing.” This judgment conclusively established defendant’s liability under the lease, and that an instalment of rent fell due on the first of March.

As by the terms of the lease the rent was payable quarterly in advance; and by the judgment a quarter’s rent became due on the first of March, the inevitable result was that another instalment was payable on the first of December. “ The estoppel of a former judgment extends to every material matter within the issues which' was expressly litigated and determined ; and also to those matters which, although not expressly determined, were comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. It is not necessary that issue should have been taken upon the precise point controverted in the second action.” Campbell, etc., v. Walker, 114 N. Y., 7; 22 St. Rep., 173; Lorillard v. Clyde, 122 N. Y., 41; 33 St. Rep., 303. The efficacy of the former judgment was not impaired' by the fact that it was taken by default. Brown v. Mayor, 66 N. Y., 385; Bullard v. Sherwood, 85 id., 253; Gates v. Preston, 41 id., 113; Newton v. Hook, 48 id., 676.

Appellant contends, nevertheless, that the corporate capacity of the plaintiff was not proved on the trial. Assuming this fact not adjudicated by the former judgment, still the objection is unavailing, since the answer contains no affirmative allegation that the plaintiff is not a corporation. Code, § 1776.

Again, appellant insists that there was no evidence of default in the rent; but the complaint alleges its nonpayment, and the answer, simply a denial, raises no issue as to the fact. Lent v. R. Co., 130 N. Y., 504; 42 St. Rep., 592.

Judgment affirmed, with costs.

Bischoff and G-iegerich, JJ., concur.  