
    Herman Anhalt, Appellant, v. Charles I. Lightstone, Respondent.
    Appeal by the plaintiff from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, second district, borough of Manhattan.
    Morris Meyers, for appellant.
    Goldsmith & Rosenthal, for respondent.
   Freedman, P. J.

This action is brought by the plaintiff for the recovery of the rent of certain premises for the months of May, 1901, to December, inclusive.

The complaint alleges that an oral agreement was made about December 12; 1900, between Morris and Julius A. Bernstein, plaintiff’s assignors, with the defendant, whereby the defendant leased said premises for one year from January 1, 1901, to January 1, 1902, at the rate of thirty-one dollars and twenty-five cents per month; that defendant paid the rent- for January, February and March, 1901; that a suit was tried before Mr. Justice Pen-field for the rent of the month of April; 1901, on November 14, 1901, and in which there was a judgment rendered for the plaintiffs, the assignors of the plaintiff in this action, and that in said action and judgment it was adjudged that there was a yearly hiring by the defendant and that there had been no surrender and acceptance of the premises as pleaded by the defendant.

The theory of the plaintiff herein was that the judgment rendered in the action before Mr. Justice Penfield was res ad judicata in the present action.

It appears that in April, 1901, plaintiff’s assignors brought an action to recover the rent for that month, alleging a written lease for the term of one year, the defendant claiming a leasing from month to month only, and that the defendant recovered a judgment which was subsequently reversed by the Appellate Term (36 Misc. Rep. 193), and a new trial ordered. The Appellate Term then held, in substance, that the testimony of the defendant, which, for the purposes of the appeal, was taken as true, brought the case within the statute which provides that “ an agreement for the occupation of real property in the city of Hew York which shall not particularly specify the duration of the occupancy shall be deemed to continue until the first day of May after the possession commences,” etc., and that “ it was fair to assume that the hiring was intended for more than one or two months.”

It was not there determined as a matter of law as contended for by the respondent herein, that the defendant’s hiring was “ an indefinite hiring.” It is claimed by the plaintiff herein that upon the new trial before Mr. Justice Penfield, held as before stated on Hovember 14, 1901, the plaintiffs amended their complaint so as to set up an oral leasing for one year, from January 1, 1901, to January 1, 1902, and the defendant amended his answer, setting up among other things a “ general denial, surrender and acceptance, and an indefinite hiring,” and upon these issues the parties went to trial, and the plaintiff had a judgment as aforesaid.

If it is true as set up in the complaint herein, that the material questions involved in this action, were the same as in the former action between the same parties or their privies, then the judgment in such former action would be conclusive in the case at bar.

The learned justice, upon the trial in the present action, excluded all testimony offered by the plaintiff herein, relative to the trial and determination of the issues in the former action. The grounds for such rejection of the offered testimony are stated in the opinion handed down hy him and attached to the record to he as follows:

“ Under the attempted defense of a hiring for an indefinite term no issue was presented, because under the,statute such a hiring extended the term to May 1st. That the parties mistook the effect of the pleadings and gave evidence as to whether the hiring was for a definite or indefinite term did not make the question an issue in the case and the decision that the plaintiffs were entitled to recover the rent for April did not involve any determination as to the hiring in that respect.”

In this the learned justice was in error. By the general denial interposed by the defendant to the complaint of the plaintiffs he put in issue the character of the term; that is, the plaintiff claimed the term was for one year, this the defendant denied; that question was, therefore, in issue. While it may be true that under the defendant’s plea in his answer of “ an indefinite hiring ” he thereby made himself liable in any event for the April rent; nevertheless there was the controverted allegation of the plaintiff, that the April rent was due under a yearly lease, and not merely because of an indefinite hiring, and therefore there was an issue set forth in the pleadings as to whether the defendant was liable because he was a tenant under a lease for one year, or only as a tenant for an indefinite term, and if that issue was determined in favor of the plaintiff in the former action it would be conclusive upon the defendant in the present action. It was error, therefore, for the trial judge to exclude the judgment in the former action. The plaintiff in the case at bar also offered to prove by Mr. Justice Penfield, the justice before whom the former action was tried, and who rendered judgment therein, what the facts litigated in that action were, and his findings thereon. This offer was refused by the court upon the ground that it was entirely immaterial.

Evidence as to what the issues and what was actually decided in the prior action was admissible. Doty v. Brown, 4 N. Y. 71. But such evidence must be consistent with the record. Lorillard v. Clyde, 122 N. Y. 41.

The judgment must be reversed.

Clarke and Greenbaum, JJ., concur.

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