
    Sara Luxemburg, Landlord, Appellant, v. Joseph Frumkes, Tenant, Respondent.
    Supreme Court, Appellate Term, Second Department,
    February 14, 1948.
    
      
      Charles H. Pier for appellant.
    
      Martin Granirer for respondent.
   Memorandum Per Curiam.

The landlord having made out a prima facie case, it was error to dismiss at the close of her case. The burden of establishing the defense of res judicata was upon the tenant. (Grifen v. Keese, 187 N. Y. 454, 464; Reynolds v. Aetna Life Ins. Co., 160 N. Y. 635, 651; Carter v. Beckwith, 128 N. Y. 312, 323.) There were new facts claimed to have occurred since the former trial which went to the question of the landlord’s good faith and immediate compelling necessity.

The final order should be unanimously reversed upon the law and new trial granted, with $10 costs to the landlord to abide the event.

MacCrate, Smith and Steinbbink, JJ., concur.

Order reversed, etc.  