
    William F. Cochran, Respondent, v. Lorenz Reich, Appellant.
    (Supreme Court, Appellate Term,
    June, 1897.)
    1. Summary proceedings — Former adjudication.
    After a final order, in favor of a landlord, had been made in summary proceedings, the tenant brought an action in equity against the landlord, in the Supreme Court, and there claimed, by way of equitable relief, that the lease be declared a mortgage to secure usurious loans and on that account void. The Supreme Court decided that the final order was an adjudication that the relation of landlord and tenant existed between the parties, and that it. estopped the tenant from questioning the validity of the lease. Held, that the judgment of the Supreme Court was conclusive as to all matters adjudicated by it or which the parties might have litigated as incident to the subject-matter of the litagation, and- that consequently the tenant was not in a position to interpose to two subsequent summary proceedings taken to dispossess him for his failure to pay subsequent installments of rent, the defense that the lease was usurious and void.
    
      2. Same — Water rents in default.
    ' Where a lease provides that the landlord, upon the failure of the tenant so to do, may pay water rents imposed upon the premises and- • enforce the payment of the same as a part of the rent reserved by the lease, he is entitled to the possession, of the premises if, at the time when the summary proceedings are taken, any amount of water rents is due to him, as paid by him under his agreement with his tenant.
    Appeals by tenant from final orders in summary proceedings made by the Sixth District Court.
    Vanderpoel, Cuming & Goodwin (Delos McCurdy, of counsel), for appellant.
    Evarts, Choate & Beaman (Treadwell Cleveland, of counsel), for respondent.
   McAdam, J.

After the final order of August 17, 1892, was made in the proceeding between these same parties referred to in the opinion filed this day in appeal No. 1, and the rent under such order was paid, the landlord commenced the two proceedings from which the present-appeals are taken, one on February .13, 1893, for the nonpayment-.of $13,250 rent accruing after said first proceeding up to November 1, 1892, and of $1,903.30 water rents paid by the landlord; and the other on March 2, 1893, for the nonpayment of $13,250 rent from November 1, 1892, to February 1, 1893.

The tenant interposed as a defense that the lease was usurious and void.

Prior to the trial of these two proceedings a suit in equity brought by .the tenant against the landlord came on for trial in the Supreme Court. In that suit the. tenant claimed by way-of equitable relief that the lease be declared a mortgage to secure usurious loans, and on that account void. The' Supreme Court after a trial on the merits decided that the final order referred to in the opinion on appeal No. 1 was an adjudication that the relation of landlord and tenant existed between the- parties, and estopped the tenant from questioning the validity of the lease; and found:

“ First. That on or about February 1, 1888, the defendant made to the plaintiff a lease dated that day of - premises at the southwest corner of Fifth avenue and Thirty-third street known as numbers 328, 330, 332 and 334 Fifth avenue in the city of New York.' The plaintiff accepted said lease aqd entered into possession of said premises thereunder.

“ Second. The rent for the months of May, June and July, 1892, amounting to $13,250, was due and payable under said lease by the plaintiff to the defendant on August 1, 1892. . The said rent remaining unpaid by the plaintiff on August 12, 1892, on that day the defendant duly began summary proceedings in the District Court of the city of New York for the Sixth Judicial District, to which court jurisdiction in that behalf appertained, to recover the possession of the said premises by reason of the failure of the plaintiff to pay the said rent. . ..

“ Third. That1 in said proceedings a precept was duly. issued, and served upon the plaintiff, and upon the return thereof on August 11, 1892,. the said plaintiff, the tenant in said proceeding, appeared by attorney.

“Fourth. On August 17, 1892, in said summary proceedings judgment-was duly rendered in favor of the petitioner' in said proceedings, William F: Cochran, the defendant herein, that said petitioner have possession of the said premises by reason ,of the nonpayment of the tenant’s rent.”

' And the court decided that the lease of the said premises was and is a valid lease; and directed that the complaint be dismissed ■ on the merits, with costs.

The judgment in the Supreme Court suit was put in evidence on the trial of these two proceedings, and the justice, following the ruling made "by the Supreme Court, held 'that the lease was a valid instrument, and that the Supreme Court judgment was conclusive as to all matters adjudicated thereby or which the parties might have litigated as incident to the subject-matter of the litigation. Jordan v. Van Epps, 85 N. Y. 436; Reich v. Cochran, 151 id. 127.

The Supreme Court judgment having been affirmed by the General Term (74 Hun, 551) and by the Court of Appeals (151 N. Y. 122) the only questions open to review now are those relating to the amount of rent found due, and the sufficiency of the demand made therefor.

As to the rent for the premises there is nó question, because the amount was fixed by the lease, and there was no allegation or proof of payment.

The landlord produced receipted bills for the water rents and proved their payment, thereby establishing his right thereto under the terms of the lease, which provided that if the tenant did not pay them the landlord might enforce payment thereof to him as part of the rent reserved by the lease. Bowman v. Downer, 28 Vt. 532; Hall v. Hall, 1 Mass. 101; Lewison v. Hoffman, 8 Misc. Rep. 583; Blazo v. Gill, 143 N. Y. 232.

The justice had no power to .award judgment for the recovery of the rent or water rents, and if any amount for either was due the landlord was entitled to the final order. Jarvis v. Driggs, 69 N. Y. 143; Grafton v. Brigham, 70 Hun, 131.

The demand was made by a three days’ notice in writing in the form and served in the manner prescribed by the statute.

So that everything essential to' the landlord’s case was established.

The" objections urged in the court below are without merit, and the final orders must be affirmed, with costs.

Bischoef, J., concurs.

Orders affirmed, with costs.  