
    Herkowitz v. Molnick, Appellant.
    
      Argued October 15, 1930.
    Before Trexler, P. J., Keller, Linn, Gawthrop, Cunningham, Balurige and Whitmore, JJ.
    
      E. Moss of Moss cB Moss, for appellant.
    
      Harry Fischer, and with him Bernard A. Illoway, for appellee.
    December 27, 1930:
   Opinion by

Trexler, P. J.,

By virtue of a provision of the lease between the parties to this proceeding, a judgment was entered against Molniek, the defendant, on August 29, 1929, for the sum of $4,000. On the 31st day of August, 1929, the defendant presented a petition praying that the judgment be opened, stating that instead of $400 a month being due, $375 was the correct figure, (later fixed by the defendant at $350) that sum being agreed to by oral agreement in consideration of the defendant retaining possession of the premises and the prompt payment of all future rents.

The fifth paragraph of the affidavit avers that “he (the deponent) tendered the rent to the plaintiff in accordance with the verbal agreement between the parties, by sending to the attorney for the plaintiff a check in the sum of three hundred seventy-five ($375) dollars [each month?] for the months of February, March, April, May, June, July and August, which the plaintiff by his attorney has refused to accept, and returned to your deponent.” This paragraph becomes significant in view of what appears later.

The court granted a rule to show cause why the judgment should not be opened which was afterwards made absolute. The judgment was opened September 24, 1929. On the 27th of the same month, the plaintiff presented his petition asking for a rehearing. The court afterwards rescinded the order, making absolute the rule to open judgment, reinstated the rule and discharged it. From this order no appeal was taken. December 17, 1929, the defendant again came with a petition stating that the judgment had been entered for $4,000, but that it should be $3,200 because the rent for the months of February and March, 1929, reckoned at $400 per month by the plaintiff, but reduced to $350 per month had been paid by check of $700. The court granted a rule, testimony was taken and the rule finally discharged from which order the present appeal is taken.

Every matter brought up before the court in this petition to reassess the damages could have been raised in the petition to open the judgment. The judgment, if entered for more than was due, could be reducéd and this was 'the effort made in the first instance when the petition to open was allowed. The payment now claimed to have been made was not since the judgment was entered, but before. If tbe defendant had any defense as to tbe amount, be should have urged it when tbe first petition was before tbe court. Tbe decision of tbe court refusing to open tbe judgment settled all matters so far as tbe amount of the judgment was concerned and in order to reopen tbe matter, tbe petition to reassess tbe damages should have brought something to tbe attention of tbe court that would move tbe conscience of tbe court to reopen tbe case. Tbe appellant offers no explanation or excuse for having alleged in bis first petition that be bad tendered a check for tbe very months which be now claims be paid and which check was refused by the attorney for tbe‘plaintiff. Tbe court took tbe view that tbe defendant was estopped from denying tbe averment in this petition to open unless bis denial was accompanied by an explanation of tbe mistake.

But passing this feature of tbe case, tbe court in considering tbe depositions taken in support of tbe rule, came to tbe conclusion that no cause was shown why tbe damages should be reassessed. Tbe check in question stated that it was for tbe rent until April 15th. Tbe plaintiff, in bis deposition, goes into particulars as to tbe circumstances under which it was given and stated that at that time be declared be would accept tbe check because be needed money, but that it was not correct and that theré was an accumulation of back rent of a balance of $50 a month beginning December, 1927. This statement of tbe plaintiff coupled with tbe affidavit of tbe defendant to which we have already referred, that be bad tendered a check for certain months including tbe months which be now claims to have paid and which tender was refused, was sufficient to support tbe refusal of tbe court to open tbe judgment. Tbe lower court made tbe following comment: “Depositions were taken and a careful reading of them leaves us unmoved in feeling that the defendant has not established the facts other than he averred them to be in his petition to' open. The witnesses he called were rather vague, indefinite and unconvincing, and in view of his own assertion in his petition to open and sworn to solemnly under oath, it is difficult for us to believe that the facts are otherwise than as fixed.” It was a matter within its sound discretion. ■ ■

The order is affirmed, the appellant to pay the costs.  