
    James Butler, Respondent, v. Jacob Stellman and Moses Stellman, Composing the Firm Known as Stellman & Co., Appellants.
    (Supreme Court, Appellate Term, First Department,
    January, 1916.)
    Summary proceedings — action for breach of covenant to pay rent — landlord and tenant — pleading — judgments — Code Civ. Pro., § 1317-
    In an action for breach of covenant to pay rent for the months of June, 1914, to January, 1915, inclusive, it appeared that on the trial of a summary proceeding for the nonpayment of rent due May 1, 1914, it was found as a fact that before the warrant of removal was issued the defendants vacated the premises and that plaintiff took possession thereof under the terms of the lease, but though there was no conclusion to the effect that the lease was terminated by the dispossess proceedings there was in the record on appeal from a judgment in favor of plaintiff herein an admission that by said summary proceedings defendants had been dispossessed from the premises. Held, that in the- circumstances and upon the authority of section 1317 of the Code of Civil Procedure the appellate court must amend the finding of fact to read that "by virtue of said proceeding the defendants were duly dispossessed from the premises in question ” and make a conclusion of law "that by reason of the said proceedings plaintiff terminated the relation of landlord and tenant theretofore existing between plaintiff and the defendants and thereby canceled and annulled the lease.”
    Where, in an action commenced in September, 1914, to recover rent for the months of May, June, July and August of that year, after an unsuccessful endeavor to rent the premises to other tenants, the complaint was amended at the trial so as to ask only for the May rent, a judgment rendered in favor of plaintiff therefor was not res adjudieata in the present action.
    Appeal by defendants from a judgment of the City Court of the city of New York^in favor of plaintiff, after a trial by a judge without a jury.
    
      Samuel Markewich, for appellants.
    John H. Rogan, for respondent.
   Bijur, J.

This action is brought to recover from defendants rent for the months of June, 1914, to January, 1915, inclusive, at the rate for the first seven months of seventy-five dollars a month and of the last month eighty dollars. The facts are undisputed.

Defendants were plaintiff’s tenants under a long •lease. May 26, 1914, the landlord brought summary proceedings for nonpayment of the May rent, due May first. The learned trial judge has found, ‘ ‘ but before a warrant therein was issued out of said Municipal Court, the defendants vacated the said premises and the plaintiff took possession thereof ■under the terms of said indenture of lease.”

As I shall point out the crucial question in this case is whether the lease was terminated by the dispossess proceedings. There is no conclusion of law to that ■effect, and from this finding of fact it would appear that the lease had not been terminated. We have, however, in the record before us an admission by defendants ’ counsel that defendants, by this summary proceeding “ had been duly dispossessed from the premises in question,” and that is repeated, expressly or impliedly, a number of times. It is, therefore, not even necessary to determine whether by defendants’ vacating the premises after the institution of the summary proceedings but before the warrant issued the relation of landlord and tenant had not been terminated. I think it had been. Hoffert v. Dutton, 132 N. Y. Supp. 360. Under the circumstances, therefore, and upon the authority of section 1317 of the Code of Civil Procedure (see Bonnette v. Molloy, 209 N. Y. 167, 172), we must amend the third finding of fact to read that “by virtue of said proceedings the defendants were duly dispossessed from the premises in question, ’ ’ and we must make a conclusion of law to accord with the tenth allegation of defendants’ answer That by reason of the said proceedings the plaintiff terminated the relation of landlord and tenant theretofore existing between plaintiff and the defendants, and thereby cancelled and annulled the lease.”

To resume now the statement of facts. From May twenty-sixth on plaintiff endeavored to let the store to other tenants, but without avail. September 5, 1914, he brought an action against the defendants in the Municipal Court for rent for the months of May, June, July and August, but at the trial amended the summons and complaint to ask only for the rent for the month of May, for which judgment was thereupon rendered in favor of plaintiff.

Defendants on the trial in the instant case amended their answer to plead substantially as their only defense the above recovery as res judicata as to the installments of rent due on the 1st days of June, July, August and September, 1914, which, under the terms of the lease, would have been $75 a month, a total of $300, by which amount appellant insists the present judgment should be reduced.

Respondent frankly concedes the correctness of defendants’ contentions to the effect: That several claims payable at different times, arising out of the same contract or transaction must be included in one action,” on the authority of Kentucky v. City of New York, 196 N. Y. 19 and Lorillard v. Clyde, 122 id. 41. Also that' ‘' The test of the identity of actions is not the theory upon which the pleader adduces his evidence nor the forum to which he presents it, but whether the same evidence will support the two suits,” on the authority of Steinbach v. Relief Fire Ins. Co., 77 N. Y. 498 and Stowell v. Chamberlain, 60 id. 272.

Respondent urges, however, and I agree in the correctness of his position, that these rules have no application to the case at bar. The dispossess proceedings of May, 1914, having terminated the lease, the landlord’s action brought in September, 1914, was correctly modified to be one for rent solely for the month of May. His present suit, although the recovery may be measured by the amount of the rent for each succeeding month, is not an action for rent nor an action under or upon the lease as a whole, but one strictly for damages for defendants’ breach of their separate covenant to pay rent, which, by the terms thereof, expressly survived the termination of the lease. Pannuto v. Foglia, 55 Misc. Rep. 244, 247; Michaels v. Fishel, 169 N. Y. 381. See also Walsh v. New York & Kentucky Co., 88 App. Div. 477, and McCargo v. Jergens, 206 N. Y. 363. The previous recovery for rent, therefore, was not res judicata upon the present suit for damages for breach of covenant.

Guy and Gavegan, JJ., concur.

Judgment affirmed, with costs.  