
    Jennie E. Kent, Resp’t, v. Richard C. Sibley et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 2, 1889.)
    
    Undertaking—Fraud in procuring lease cannot be set up in action on undertaking on appeal.
    Tlie case of Embrey v, Jemison, 40 AJb. L. J., 32, does not authorize a plea of fraud in procuring the execution of a lease in an action for nonperformance of the condition of a bond given on appeal in summary proceedings.
    Motion for reargument or for leave to go to the court of appeals.
    Action upon an undertaking given on appeal from a judgment in summary proceedings. Defendant, among other defenses, set up fraud in inducing him to enter into the lease. A demurrer to this defense was sustained, and the judgment entered thereon was affirmed by this court. 25 H. Y. State Bep., 741.
    
      Le Barbier & Brewster, for app’lts; Pelton & Poucher, for resp’t.
   Per Curiam.

The case of Embrey v. Jemison, 40 Alb. L. J., 32, has no bearing upon the question presented by the appeal. That case merely decides that a gambling contract is not enforceable by process of law. This case is one on which an action is brought upon an undertaking to stay proceedings upon appeal There was no illegality in the undertaking or in the consideration for the undertaking. Even if'the defendant had been induced by fraud to enter into the lease, he does not pretend that he was induced by fraud to execute the undertaking; and it would not be a defense to an action on the undertaking to prove that fraud had been employed to get him to sign the lease. Fraud in the lease would be a defense to the lease, but not to an action on the undertaking.

Had the motion been made on the ground that there was no evidence in the case that $500 had become due as rent at the time the appeal was finally disposed of, a different conclusion might have been reached. But the defendant has not complained that the evidence was insufficient to sustain the verdict. His contention is that the case of Embrey v. Jemison authorizes a plea of fraud in procuring the execution of a lease when the action is for the non-performance of the condition of a bond given upon an appeal.

The motion for a reargument, as well as the motion for leave to go to the court of appeals, is denied.

Larremore, Ch. J., and Halt, J., concur.  