
    Jeronemus S. Underhill, Resp’t, v. Samuel Collins, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Bab—Former adjudication.
    In an action for rent of premises after defendant had quit them, the answer averred that defendant did not have quiet and peaceable possession and a surrender and plaintiff had judgment. Held, that such suit was not a bar to an action for subsequent instalments of rent.
    Appeal from judgment in favor of plaintiff on a verdict directed by the court
    Action for rent of the premises No. 50 Broad street in the city of New York.
    
      P. Q. Eckerson, for app’lt; Deming & Logan (Arthur E. Walradt, of counsel), for resp’t.
   Barnard, P. J.

—The plaintiff let to the defendant premises in New York for three years and seven months at the monthly rent of seventy-five dollars, payable in advance until May, 1887, and after that time at $100 per month. The lease was given the 30th of September, 1886. Defendant took possession of the premises and occupied them until May, 1888. The rent was paid up when the tenant left the premises. In January, 1889, the plaintiff brought an action to recover the instalments due under the lease. The answer averred that defendant did not have quiet and peacable possession and a surrender of the premises. The plaintiff recovered judgment in the action. This action is brought for the subsequent instalments and the same defenses are pleaded, with the additional one of a former suit in bar. The court ordered a verdict for the plaintiff. The former suit was not a bar. An action upon an instrument payable by instalments may be brought for each instalment as it became due, but the action must embrace all which are due when the action is commenced. Lorillard v. Clyde, 122 N. Y., 41; 33 N. Y. State Rep., 303.

The former suit did establish that there had been no surrender and no eviction and that the defendant was not justified in leaving the premises. No new surrender after the former action was proven and none which was not within the evidence given in this action. Of course there, was no new eviction, for the defendant had left the premises before the first action was commenced and no new possession had been taken by defendant.

There was no question as to the amount of the rent. The defendant asked a reduction from the amount as called for by the lease, and it was allowed.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  