
    Margaret Burckle, Appellant, v. David Shannon, Respondent.
    (New York Common Pleas—Additional General Term,
    February, 1894.)
    In an action for rent the defense was eviction and former adjudication. The only evidence introduced by defendant was the record in a former action, brought by defendant to recover damages sustained by reason of imperfect'construction of a building on the premises, to which a counterclaim for previous rent was interposed, and eviction was set up in reply. In such action the court instructed the jury to find for the defendant therein as to the rent, on the ground that the plaintiff had retained possession of the premises by leaving goods thereon, and this defendant recovered judgment therein for the amount of his damages over and above such rent. Held, that such judgment was no proof of an eviction occurring prior to the period for which the rent claimed in this action was "demanded, and that a subsequent removal by defendant, without proof that the premises were wholly or partially untenantable at the time when the rent accrued, could not effect a. suspension of the rent or furnish a defense to an action therefor.
    Appeal by the plaintiff from so much of the judgment of the District Court in the city of New York for the eleventh judicial district as fails to adjudge that such plaintiff is entitled to recover the sum of $150.
    Action for rent. The opinion states the material facts.
    Arnoux, Hitch c& Woodford, for appellant.
    
      Hirsh & Rasquin, for respondent,
   Giegerich, J.

To an action for rent the defendant pleaded eviction and a former adjudication. None but record evidence was submitted by the parties, the plaintiff’s case resting upon the pleadings and the defendant’s upon the record of a former action between the parties in the City Court of Brooklyn and a stipulation as to facts entered into by the parties to obviate the production of witnesses. The lease under which the relation of the parties subsisted provided, for rent at the rate of fifty dollars per month, and this action was brought for the rent due for the months of December, 1891, and January and February, 1892. That such rent was unpaid was admitted by the stipulation, and the allegations of the complaint generally were admitted, the defense being confession and avoidance. The former adjudication upon which the defendant relied was in an action of the nature following: This defendant there brought suit against his landlord, the plaintiff herein, for damages sustained by reason of the imperfect construction of an ice house upon the premises demised by the lease now in question. To that action was counterclaimed the rent for the months of September, October and November, 1891, and to the counterclaim eviction was set up by reply. The trial resulted in a verdict for this defendant for forty-one dollars over and above the amount claimed for the rent, the jury being instructed to find for the defendant, this plaintiff, upon that issue. The ground of this instruction was that the plaintiff in that action had retained possession of the premises by leaving his goods thereupon. Neither party appealed from the judgment, and this ruling stands as the accepted law of the case. According to the stipulation in this action the defendant removed his goods on December 19,1891, and the justice, following the ruling above noted, rendered judgment for the plaintiff for fifty dollars, the amount of rent for the month of December. In that the judgment was not rendered for the full three months’ rent lies the appellant’s grievance.

The result of the former action was that this defendant had suffered damage, for which he was thereby compensated; that there had been no eviction at that time which could be available as a defense to the rent, and that this plaintiff was entitled to the rent there claimed.

The former adjudication as to this cause of action, viz., the rent, even if it might be considered as bearing upon the rent subsequently accruing, is an adjudication adverse to the defendant; as an adjudication of eviction it manifestly fails. It is conceded that upon the first of December the position of the defendant was the same as during the period embraced ■within the determination of this prior judgment. Thus, the record in evidence is no proof of an eviction occurring before the period for which the rent in this action is demanded; it is, indeed, squarely to the contrary. How then can the fact, as conceded, that the defendant removed from the premises subsequent to this above-mentioned date, of its own force effect a suspension of the rent ? In the absence of any evidence that the premises were wholly or partially untenantable at the time when the rent for which this action is brought accrued, the defendant’s case is obviously insufficient, and there is unquestionable merit in the appeal.

The judgment as appealed from should be reversed and a new trial ordered, with costs to the party there prevailing.

Bischoff, J., concurs.

Judgment reversed and new trial ordered, with costs to the party there prevailing.  