
    Elizabeth Grafton, App’lt, v. William T. Brigham et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    1. Summary proceedings—Service—Waiver op defects in.
    An irregularity in the service of the precept in summary proceedings is cured by a general appearance on the return day.
    2. Same—Res adjudicata.
    A judgment in summary proceedings, dispossessing the assignees of a lease for non-payment of rent, is conclusive, in a subsequent action for the rent, as to the liability of the assigne s for (he, rent, and as to every fact alleged in the landlord’s petition, except as to the amount of rent.
    Appeal from a judgment entered upon the verdict of a jury by direction of the court.
    
      Byram L. Winters (Jomes A. O'Gorman, of counsel), for app’lt; Henry L. Sprague, for resp’ts.
   Barrett, J.

This action was for rent, against the assignees of the original tenant. The complaint sets out the lease, and the-assignment thereof to the defendants subject to the covenants therein contained.” It is then averred as follows:

“ That thereupon and thereunder the defendants entered into occupation and possession of the premises under the terms and conditions of said agreement, and did attorn to pay rent, under and as provided by said agreement, for the premises aforesaid, to this plaintiff, as their landlord.”

The defendants admitted the facts thus averred, and their sole defense was that before the rent here claimed became due they, in their turn, assigned the lease to one Chapin, and vacated the premises; Chapin thereupon entering into possession, and attorning to the plaintiff. Upon the trial the defendants gave evidence tending to establish the facts thus affirmatively pleaded, and the plaintiff, in rebuttal, put in evidence the judgment of a district court, dispossessing these defendants for the non-payment of the rent for the recovery of which the present action was brought. The defendants objected to this judgment, claiming, first, that it was void for want of jurisdiction; and, second, that it was not res adjudícala as to the relation of landlord and tenant, or as to their liability as assignees.

The first objection was based upon an irregularity in the service of the precept in the summary proceeding. It must be conceded that the precept was not served according to law, but the irregularity in that respect was cured. The record shows that the tenants appeared general^ upon the return day, and that the justice thereupon wrote upon the back of the precept: “ Answer to be filed by 11 A. M. If not filed, judgment to be signed. If filed, to be adjourned to 13th.” The city marshal, who had charge of the proceedings, also testified that there was an attorney who appeared for the tenants. There was thus a waiver of any defect in the service of process, and jurisdiction to proceed was conferred upon the justice. A magistrate, in these proceedings, can acquire jurisdiction of the person by consent, though not, of course, of the subject-matter. McCarthy v. Noble, 5 N. Y. Leg. Obs., 380; Campbell v. Mallory, 22 How. Pr., 189. And see Sims v. Humphrey, 4 Denio, 185; Nemetty v. Naylor, 100 N. Y., 569. Ho attempt was here made to dispute this appearance, or to show that it was unauthorized. The judgment was, therefore, jurisdictionally valid.

Tire other point is equally untenable. It, was distinctly held in Brown v. Mayor, 66 N. Y, 385, that a judgment taken by default in these summary proceedings, until reversed, set aside, or vacated, is conclusive (in an action by the landlord against the tenant to recover the rent) of the facts alleged in the affidavit, and which are required by the statute to be alleged as the basis of the proceedings. In the proceedings under consideration the essential facts alleged in the landlord's petition and affidavit were the original lease, the assignment thereof to the defendants, their entry and attornment thereunder, the amount of rent due, and the holding over without permission after default. As to all these facts, except the amount of rent due, the judgment was conclusive. Even as to the amount due, Brown v. Mayor would seem to be in point. It was held, however, in Jarvis v. Driggs,, 69 N. Y., 147, that this particular question was not decided in Brown v. Mayor, and that the tenant was not concluded by the landlord's affidavit as to the amount of rent. It is said in the latter case that the amount of rent is nonessential, as the landlord is entitled to a warrant if any rent whatever is due and the tenant holds over without permission after demand. The reason of the distinction is not apparent, as the landlord must fail unless he establishes a demand for the amount due as averred. This is as essential to obtain judgment of dispossession as the existence of the tenancy, or other jurisdictional facts. Be that as it may, however, the judgment is clearly binding upon the question of the defendants’ liability as assignees in possession; in other words, upon every fact alleged in the landlord’s affidavit, except as to the amount of rent. The general doctrine enunciated in Brown v. Mayor, etc., is not questioned in Jarvis v. Briggs, and it has since been reaffirmed in many cases. Leavitt v. Wolcott, 95 N. Y., 212; Blair v. Bartlett, 75 N. Y., 153 ; Nemetty v. Naylor, 100 N. Y, 570.

The judgment under consideration certainly depended upon the original lease, the assignment thereof to the defendants, and the fact that they held over, and continued in possession of the demised premises, without the permission of the landlord. As to these facts they are estopped from questioning the judgment, and such facts are conclusive in favor of the plaintiff’s right to recover the rent reserved in the lease prior to the dispossession. The defendants had an opportunity of showing before the justice that they were not assignees in possession ; that in fact they had assigned the lease, and vacated the premises; and that their assignees were in possession. But they did not choose to avail themselves of this defense. As was said in Brown v. Mayor, they were “informed of the claim made” against them, and they were “ called upon to contest it.” They could have absented themselves, if they desired to question the service of the precept, or they could have appeared, and objected to such service. But they did neither. They simply appeared, without making any objection or interposing any defense upon the merits. Ilnder such circumstances the judgment is conclusive upon their liabilitjr as assignees in possession. Being so concluded, they are liable on all covenants that run with the land. Thus, they are liable for the taxes, as well as for the rent proper, for such was the obligation of the original lessee. Tayl. Landl. & Ten., §437.

It was not necessary to put the original lease in evidence, as it was admitted by the pleadings. The assignment to, and attornment by, the defendants, were also admitted. That being so, the unpaid rent and taxes were prima facie due and payable by the defendants, and the plaintiff was not called upon to furnish any other proof upon that head. To absolve themselves from the liability arising upon this state of facts, the defendants were bound to show that at the time when the rent and taxes became due, under the terms of the lease, there was no longer any privity of estate between themselves and the plaintiff; in other words, that they had then assigned the lease, and vacated the demised premises. This, however, it was impossible for them to show, because the very reverse was conclusively established by the judgment in the summary proceeding. It follows that the verdict should have been for the plaintiff, and not for the defendants. The judgment should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., and Follett, J., concur.  