
    Lee G. Lawrence et al., as Trustees, Etc., Respondents, v. The Edwin A. Denham Company, Appellant.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Duress — Threats — To evict.
    Former adjudication — Adjudication in particular actions or proceedings — Actions between landlord and tenant — Summary proceedings.
    Where a tenant in summary proceedings litigates the issue whether any rent was due, a final order in favor of the landlord, though erroneous for the reason that the tenant was held liable for rent during the time that a partial eviction continued, is res adjudicata until reversed on appeal and is not subject to collateral attack.
    A payment of the rent under a threat to dispossess the tenant under the order of removal is not a payment under duress.
    Appeal by the defendant from a judgment in favor of the plaintiff's, rendered in the Municipal Court of the city of ¡New York, first district, borough of Manhattan.
    Gignoux & Reid, for appellant.
    William C. Davis, for respondents.
   Lehman, J.

The only questions raised upon this appeal deal with the counterclaim pleaded by the defendant. It is for money paid under duress. The duress consisted of a threat to dispossess the defendant under eight separate orders in summary proceedings. These eight orders were granted after separate trials in which the defendant took part and in all of which it apparently set up facts sufficient to show a partial eviction. No appeal was taken from any of these orders. The defendant had opportunity to, and actually did, litigate the issue whether any rent was due at the time; and the decision of the court has become res adjudicata. It is quite true that the defendant took appeals from similar orders, and this court has held that no rent was due during the time that a partial eviction continued. Apparently, therefore, the Municipal Court orders were erroneous; nevertheless, the orders were valid until reversed on appeal and cannot be attacked collaterally. The plaintiff has shown that the payments of the rent were made under the orders of the court, which were then valid and are still unreversed and in force, and these orders constitute a complete defense to the counterclaim.

The judgment should be affirmed, with costs.

Gildersleeve and Seabury, JJ., concur.

Judgment affirmed, with costs.  