
    REICH v. COCHRAN.
    (Supreme Court, General Term, First Department.
    December 15, 1893.)
    1. Res Judicata—Judgment in Summary Proceedings.
    A judgment in summary proceedings for the removal of a tenant is-conclusive of the existence and validity of the lease in a subsequent action between the same parties.
    8. Same—Pleading—Waiver.
    In an action to set aside the lease from defendant to plaintiff on the ground that it was only intended to secure a usurious debt, defendant moved to dismiss the complaint The parties stipulated that, for the purpose of the motion, it was conceded that summary proceedings had been brought to dispossess plaintiff (the tenant) for nonpayment of rent, and that judgment was rendered dispossessing him. Held, that the stipulation was a waiver of defendant’s failure to plead the adjudication in the-summary proceedings.
    Appeal from, special term, New York county.
    Action by Lorenz Reich against William F. Cochran. There was a judgment in favor of defendant, and plaintiff appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN, J.
    Delos McCurdy, for appellant.
    Treadwell Cleveland, for respondent.
   O’BRIEN, J.

This action was brought to have an agreement in the form of a lease from defendant to plaintiff declared a mortgage to secure a loan with usurious interest, and to have the same declared void, and delivered up and canceled. The plaintiff, having obtained a lease of the Cambridge Hotel, assigned the same to defendant, who thereupon made a sublease of the same premises to plaintiff, which arrangement the plaintiff alleges was a mere cover for a usurious loan, and should therefore be held void. As a defense, it was alleged that defendant, through a duly-authorized agent, served upon the plaintiff a three-days notice and demand for the payment of a certain sum due as rent under said lease, or for the delivery of the premises, and that the plaintiff refused to pay the rent or deliver the premises; that thereafter defendant commenced summary proceedings to recover possession of the premises by filing a petition with the clerk of the district court, according to the statute, praying for the removal of the plaintiff from possession of the premises, and for delivery thereof to the defendant; that a precept was issued, which was served on the plaintiff, who appeared by his attorneys, and asked for an adjournment of the proceedings, which was refused, and judgment was thereupon rendered in favor of the defendant,—"that the said petitioner have possession of the said premises, and that a warrant issue to remove the said tenant and all persons from said premises, and to put the petitioner into full possession thereof.” Upon the trial the defendant offered in evidence a certified copy of this judgment, and thereupon moved for a dismissal of the complaint. As shown by the record, the following stipulation was made by the counsel:

“For the purposes of this action, it is conceded that in August last a proceeding was instituted in the sixth judicial district court in the city of New York, whereby this defendant sought to dispossess the plaintiff on the ¡ground that there was a certain amount of rent due under the lease that is set up in the complaint, and that such proceedings were had on the 17th of August, 1893, a judgment was entered in favor of the petitioner,—that said petitioner have possession of the premises therein described by reason of the nonpayment of the tenant’s rent, and that a warrant issue to remove the said tenant and all persons from the said premises, and to put the petitioner ¡in full possession thereof.”

The court thereupon granted the motion and dismissed the complaint on the ground that this judgment was an adjudication that the relation of landlord and tenant existed between the parties; that there was a valid lease of the premises described in the complaint from the defendant to plaintiff; and that the plaintiff was ■estopped by such adjudication from questioning the truth of these facts, the existence of the relation, and the execution of a valid lease. To this ruling the plaintiff excepted; and in support of such exception, upon this appeal, it is insisted that the learned justice erred.

It is urged that, in order that the judgment of the district court -should operate as an estoppel, or have the force accorded that was given to it by the judge in the court below, two things must concur: First, the judgment must be properly pleaded; and, second, the facts which conclusively establish the jurisdiction of the court must •affirmatively appear on the record of the judgment. With respect to the first,—that the judgment was not properly pleaded,—there -are two answers,—one, that this objection was not taken upon the trial; and another, that, by the stipulation referred to, it was impliedly waived. As to the necessity for stating the facts showing-jurisdiction, we think that, taking the certified copy of the judgment and the stipulation, sufficient facts affirmatively appear upon the record. This being the situation upon the trial, we think the ■court correctly held that the plaintiff was estopped by such judgment from questioning the validity of the sublease.

In Brown v. Mayor, etc., 66 N. Y. 385, and in Jarvis v. Driggs, 69 N. Y. 146, the extent to which the question of res adjudicata will be applied, showing that it includes summary proceedings, is fully stated; and, in the opinion in the latter case, the court, commenting upon Brown v. Mayor, etc., says:

“This court decided that the question of the existence and validity of the lease between the plaintiff and defendants was conclusively established by the determination of the summary proceedings.”

That the claim of usury sought to be made available in this action was equally available as a defense to the plaintiff in the proceedings in the district court has been expressly held in People v. Hewlett, 76 N. Y. 574. And in Nemetty v. Naylor, 100 N. Y. 568, 3 N. E. 497, which was an action brought to recover damages for an alleged "breach of a contract to alter over certain premises, and fit them for a school, and to execute to plaintiff a lease thereof for a term of .years, and in which a judgment in summary proceedings was pleaded as a bar, Miller, J., in writing the opinion, says:

“We thing that the adjudication in the summary proceedings was final and •conclusive, and is a bar to the plaintiff’s right to recover in this action; The judgment, beyond any question, settled the facts as to the tenancy existing between the plaintiff and the defendants, the nonpayment of rent due and' unpaid, and the holding over after default in payment by the plaintiff; and unless there was some invalidity in the proceedings which affected the authority of the court, and rendered its judgment inoperative and void, or a want of jurisdiction over the parties, it is not apparent how the proceedings can. be disregarded."

And that case is further authority for the proposition that’ an informality does not invalidate the proceedings and judgment, and is-no objection to the judgment when collaterally brought in question. It may only be taken advantage of on objection taken in the proceedings. So, here, many of the grounds urged against giving: proper force and effect to the judgment, and which might have been available upon a direct appeal therefrom, or upon a motion to vacate the same, cannot be resorted to for the purpose of attacking the validity of such judgment collaterally. Without discussing them all, we think it clearly appears from the record that the court obtained jurisdiction over both the cause and the parties; and when to this is added the facts appearing in the stipulation,—that it affected the same premises, and was between the same parties as are joined in this suit,—we do not think the court would be justified in seizing upon captious objections, which were neither taken in the district court nor upon the trial of this action in the court below, and which, if they had been, might have been obviated, for the purpose of destroying the binding force of the district court judgment.. Upon the whole case, we think that the decision dismissing the complaint was right, and that the judgment entered should be affirmed,, with costs and disbursements.  