
    Solomon May, Appellant, v. Stephen A. Poluhoff, Respondent.
    (Supreme Court, Appellate Term,
    January, 1910.)
    Former adjudication — Who are concluded — Licensor and licensee.
    In an action to recover damages for the breach of a contract for the privilege of maintaining a sign, a judgment against the plaintiff in favor of a third party claiming the privilege by a superior title, recovered in an action of which notice was given to the defendant requiring him to defend it, is conclusive upon him.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, ninth district, rendered in favor of the plaintiff, on the ground that the damages awarded are insufficient.
    John H. Regan, for appellant.
    Abraham Kalisky, for respondent.
   Lehman, J.

In the case of May v. Breunig, 120 N. Y. Supp. .98, we held that a contract for the privilege of maintaining a sign did not create the relation of landlord and tenant and the measure of damages for its breach is the value of the contract. In that case there was no evidence from which the court could approximate its value. In this case, however, we have evidence that the plaintiff was sued in the Municipal Court by a third party for the value of the advertising privilege which had been granted by the defendant. The plaintiff in that action was a party claiming superior title to that of this defendant.

This defendant had notice of that suit and told the plaintiff to defend it. He was liable to the plaintiff for the value of the advertising privilege if in fact he had no right to grant it. Under those circumstances, having notice of the action, he was bound by the judgment there rendered. See Prescott v. Le Conte, 83 App. Div. 482, affd., without opinion, 178 N. Y. 585. In that action judgment was rendered against this plaintiff for the value of the advertising privilege at the rate of fifty dollars. The trial justice, therefore, should have given judgment for the plaintiff herein in at least the sum of fifty dollars.

Judgment should he reversed and a new trial ordered, with costs to appellant to abide the event.

Giegerich and Dayton, JJ., concur.

Judgment reversed, and new trial ordered.  