
    John Kent, Appellant, v. Gustave Gross, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1913.)
    Judgments — action for rent — eviction.
    Where, in an action for rent, defendant -alleging loss of the beneficial use of a dumb-waiter from the basement to his store pleads a partial eviction, a judgment in plaintiff’s favor is res adjudicada in a subsequent action for rent, in the absence of proof that the loss of the use of the dumb-waiter first occurred, after the period covered by the previous judgment.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York, entered in favor of the defendant by direction of the court, and also from an order denying the plaintiff’s motion for a new trial.
    Ely Rosenberg (Max Brown, of counsel), for appellant.
    Albert J. Rifkind (Philip C. Samuels, of counsel), for respondent.
   Guy, J.

This is an action for rent of the store and basement óf 120 Second avenue as a bakery.

The defence was partial eviction by reason of being deprived of the use of a dumb-waiter from the basement to the store.

The plaintiff replied setting up that the cause of action was res adjudicata, in that in an action in the Municipal Court between the same parties, for rent due under the same lease, the defendant set up the same defence of partial eviction by reason of the alleged loss of the beneficial use of the dumb-waiter, and the plaintiff recovered judgment thereon in said action, which judgment was affirmed by this court. The judgment-roll in that action was offered and excluded, without exception, the court suggesting that the offer should be made at a later period of the trial. Subsequently plaintiff undertook to prove the bringing of the Municipal Court action, but evidence on that point was excluded and an exception noted. This ruling was erroneous. In the absence of any proof or claim that the loss of the use of the dumb-waiter first occurred after the period covered by the Municipal Court action, the judgment in the plaintiff’s favor in that action was res adjudicata against the claim that there had been a partial eviction (Reich v. Cochran, 151 N. Y. 122; 201 id. 450, 452; Jarvis v. Driggs, 69 id. 143) and evidence establishing that defense was clearly admissible.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Gebabd and Page, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  