
    H. Stanley Clutsam, Appellant, v. Charles McC. Chapman, Respondent.
    (Supreme Court, Appellate Term, Second Department,
    May, 1913.)
    Judgments — landlord and tenant — defense of eviction — action for rent — reversal of.
    There should not be conflicting judgments upon the same issue.
    A landlord, upon leasing an apartment house, agreed to furnish steam heat and to keep the premises warm during the winter months, and the tenant upon subletting with the landlord’s approval also covenanted to furnish steam heat during the winter months. The subtenant moved out in March, and in an action against him for rent he set up the defense of eviction through failure to provide heat. On the trial it appeared that the question of eviction because of failure to furnish heat was litigated and decided in a previous action for rent by the lessor against the lessee, that the subtenant had notice of said action and of the defense to be interposed and knew that the lessee must rely on him and his witnesses to establish such defense, and he appeared and assisted by his testimony in the defense of the action upon the issue of eviction. Held, that the judgment in the action by the lessor against the lessee and proof that the issue litigated therein was the same, together with notice to him to come in and defend, were competent evidence in the present action and binding on defendant.
    That in the circumstances a proper administration of justice could not permit of a recovery of a judgment against the lessee by her lessor upon the ground that there had been no eviction of her subtenant and then allow the lessee to be defeated in her action against her subtenant upon the ground that there was such an eviction, where the subtenant. had been given notice of the first action and an opportunity to defend, and, therefore, a judgment for defendant in the action brought by the lessee must be reversed.
    
      Appeal from a judgment of the Municipal Court of the city of New York, borough of Queens, third district.
    Charles C. Bunker, for appellant.
    Kindleberger & Robinson (E. Crosby Kindleberger, of counsel), for respondent.
   Crane, J.

On September 6,1911, the Varuna Investing Company, by written instrument, leased to Elizabeth F. Dalton an apartment in the building’ 225 West Eightieth street, Manhattan, agreeing to furnish steam heat and keep the apartment warm during the winter months.

In November of 1911 Elizabeth P. Dalton sublet, with the approval of the Varuna Investing Company, the apartment furnished to Charles McC. Chapman for the term of five and one-half months, also covenanting to furnish steam heat during the winter months. In March of 1912 Chapman moved out claiming to have been evicted by the cold and failure of the steam radiators to work and refused to pay the rent to Elizabeth P. Dalton for the months of March and April. She in turn refused to pay the Varuna Investing Company and was sued, by it on her lease for the rent due and judgment was rendered by default against her.

Thereupon Elizabeth P. Dalton, through her assignee, Clutsam, brought action against Chapman for the rent due upon the sublease, in which action he set up the defense of eviction through failure to provide heat in the winter months. Upon the trial there was received in evidence, as binding upon Chapman, the default judgment recovered against Dalton, whereupon judgment was given for the plaintiff. This was reversed upon appeal to the Appellate Term upon the ground that the judgment was not binding upon him as it did not appear that the question of eviction was litigated in the action of Varuna Investing Company v. Dalton, and a new trial was granted. Before this case of Clutsam v. Chapman came on for a retrial Elizabeth F. Dalton applied to have her default opened and the judgment set aside in the case of Varuna Investing Company against her, which being granted she set up as a defense to the demand of payment for the months of March and April the eviction of her subtenant, Chapman, by the reason of the cold and failure of the steam plant to furnish heat. She also served upon Chapman a copy of her answer and a notice to him to come in and defend or assist her to defend, and that if he failed so to do and judgment should go against her she would hold him liable upon his sublease for the rent during these same months. Chapman, upon the trial, appeared as a witness and testified to the condition of the apartment at and before the time he left it in March, but he took no further action to assist the defense. Judgment was rendered for the Varuna Investing Company adjudging that neither Elizabeth F. Dalton nor her subtenant Chapman had been evicted and awarding the plaintiff a sum equal to the two months’ rent.

Thereafter Elizabeth F. Dalton, through her assignee, Clutsam, brought on this action against Chapman for a retrial and offered in evidence the judgment referred to and proof that the issue- of eviction had been litigated upon that trial. The record at this point is decidedly unsatisfactory, for it is very uncertain as to whether the trial judge excluded the evidence or whether the plaintiff’s counsel withdrew it, but we are of the opinion that it was rejected on the ground that it was not evidence against the defendant Chapman, or that it was withdrawn only after such a ruling had been made. The evidence upon this retrial is entirely different from what it was on the first trial, for it now appears that the same question was litigated and decided in the action of the lessor against the lessee as is now sought to be litigated in this action by the lessee against her subtenant, viz., the question of eviction because of the failure to furnish heat, and it also appears that the subtenant had notice of this action and of the defense to be interposed, and knew that the lessee must rely upon him and his witnesses to establish suqh a defense and that he was called upon to make the defense or assist in it. Further, he did appear and assist by his presence and testimony in the defense of that action upon timt issue.

Under these circumstances the judgment in that case and proof that the issue litigated was the same, together with the notice to him to come in and defend, were all competent evidence in this action and should have been received as binding upon him. Prescott v. LeConte, 83 App. Div. 482, 490; Simpson v. Pilpoul, 77 Misc. Rep. 108; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137, 151, 152; Kelly v. Forty-Second St., M. & St. N. Ave. Co., 37 App. Div. 500; Robbins v. City of Chicago, 71 U. S. 657, 672, 673.

In the proper administration of justice our practice could not permit of a recovery, under the circumstances above stated, of a judgment against Elizabeth F. Dalton by her lessor upon the ground that there had been no eviction of her sublessee, and then allow her to be defeated in her suit against her sublessee upon the ground that there was such an eviction where the sublessee had been given notice of the first action and an opportunity to defend. In other words, there should not be conflicting judgments upon the same issue.

For the reasons herein expressed the judgment for the defendant is reversed and a new trial ordered. In the discretion of the court no costs are awarded pursuant to section 310 of the Municipal Court Act.

Bapper and Kelby, JJ., concur.

Judgment reversed and new trial ordered. No costs.  