
    Grester Realty Corp., Appellant, v. Tru-Maid Hat Co., Inc., Respondent.
    Supreme Court, Appellate Term, First Department,
    January 8, 1959.
    
      Leonard M. Henlcin for appellant.
    
      David M. Engelson for respondent.
   Per Curiam.

The tenant is concluded by the former judgment to the effect that there had been no eviction prior to June 30, 1957. Its action in removing from the premises 1 ‘ never to return” on or about June 13, 1957, in the circumstances, cannot give rise to a claim of actual or constructive eviction. The facts upon which its present defenses are bottomed, moreover, were determined adversely to the tenant in the prior proceeding.

The orders appealed from should be reversed, with $10 costs, and the plaintiff’s motion for summary judgment granted.

Concur — Hecht, J. P., Steuer and Tilzer, JJ.

Orders reversed, etc.  