
    Thomas F. Devine, Plaintiff-Respondent, v. John Kilcommons, Defendant-Appellant.
    (Supreme Court, Appellate Term,
    April, 1910.)
    Evidence — Parol evidence—Application to particular instruments and records — Matters relating to judgment and awards — Questions litigated.
    Former adjudication—What matters are concluded — Matters actually litigated and determined.
    Where it is not clear from the judgment roll alone what issues were determined in a prior action between the same parties, the scope of the prior adjudication may be shown by the minutes of the trial.
    A judgment which establishes that defendant had leased certain premises from plaintiff for six months from a certain date where the existence of such lease was the question litigated is res adjudicate, between the parties in a subsequent action for rent accruing during the term of the lease.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, third district, entered upon the verdict of a jury directed by the court in favor of the plaintiff.
    
      Kelley & Connelly, for appellant.
    James A. Delehanty (Michael F. Dee, of counsel), for respondent.
   Seabury, J.

The complaint alleges that the plaintiff is the owner of the premises Kos. 353 and 355 West Sixty-fourth street, Kew York city, and that in the month of August, 1909, the defendant leased from the plaintiff the said premises under a verbal lease for a term of six months beginning with the month of September, 1909, at a monthly rental of $125, payable in advance. In the present action the plaintiff sues to recover the rent alleged to be due for the months of Kovember and December, 1909.

Upon the trial it was conceded that the plaintiff was the owner of the premises. The plaintiff offered in evidence a judgment roll of the Municipal Court in an action between the parties tried before Justice Speigelberg. The stenographer’s minutes of that trial were offered in evidence and established beyond all question that in that action the court decided that the defendant had leased the premises for six months from September, 1909, at a monthly rental of $125.

The contention of the appellant that it was error to admit the stenographer’s minutes of the previous trial in evidence is not correct. It was not clear from the judgment roll, considered by itself, what issues were determined in the prior action. Under these circumstances it was competent to show the scope of the prior adjudication of the Municipal Court by resort to the minutes of the trial. Stecher v. Independent Order, 45 Mise. Kep. 340. The minutes of the previous trial established that the only issue upon that trial was whether there was a lease between these parties for six months from September 1, 1909, at the monthly rental of $125. That issue having been once resolved in favor of the plaintiff, the determination is res adjudicada between these parties.

It follows that the judgment should be affirmed, with costs.

Gavegan, J., concurs.

Lehman, J. (concurring).

The action is brought to recover $250 rent claimed to be due for November and December, 1909, under an oral lease for a six months’ term. The plaintiff introduced in evidence a judgment roll of a former action between the same parties for rent from the same premises. In that action the plaintiff alleged that defendant was a tenant and that by the terms of his tenancy the sum of $125 was due the plaintiff as rent on October 7, 1909, and was unpaid. The answer was a general denial and a plea of surrender, and the trial justice gave judgment for the plaintiff. By parol testimony the plaintiff was allowed to show that the actual issue litigated in the earlier action was whether or not the parties had, in August, changed a previously existing tenancy from month to month to a six months’ tenancy at the rate of $125 payable monthly in advance. I do not think that there can be any doubt that the parol testimony was admissible, under the informal pleadings permitted in the Municipal Court, to show the actual scope of the issues litigated in the earlier action (Stecber v. Independent Order, 45 Mise. Rep. 340) ; but I have arrived only with difficulty at the conclusion that the testimony has established that the decision of the trial judge that the oral lease was for six months is res adjudicada, between these parties. Issues- which the parties have submitted to a court of competent jurisdiction and had determined are put at rest and are not to be reopened and re-litigated; and the adjudication is conclusive in all subsequent controversies between them where the same matter comes again directly in question.” But the rule is not always easy of application -and there are qualifications to it which must be carefully noticed. The rule, with its qualifications, is very well stated in the brief of the learned counsel for the appellant in this action, as follows: “A judgment does not operate as an estoppel in a subsequent action between the parties -as to immaterial or unessential facts, even though put in issue by the pleadings and directly decided. But it is final as to every fact litigated and decided therein having such a relation to the issue that its determination was necessary to the determination of the issue. Whenever the same question arises between the parties, in whatever form of action, and whether involved directly or collaterally, they are forever precluded from averring the fact to be otherwise.” House v. Lockwood, 131 N. Y. 268.

The appellant contends, with plausibility, that the finding of a six months’ lease had no necessary relation to the determination of the trial justice that the tenant was liable for rent on October seventh, but that the only issue before him was whether or not the defendant was a tenant on that date. He relies for- his authority on the case of Rot-hstein v. Steinbugler, 52 Mise. Rep. 552; but on close examination I do not think that case is entirely in point. That case held only that, where an action was brought for rent by a complaint which recited such occupation and tenancy being from month to month,” and there was no trial but the defendant defaulted and paid the money into court, he was not thereafter barred from showing that the tenancy was a yearly tenancy. The court apparently held that the default did not admit all the allegations of the complaint, but- only such allegations as were necessary to sustain a recovery for the amount of rent sued for, and that it- did not admit allegations which, though part of the cause of action, might be amended without altering the defendant’s liability. We need not decide whether or not that case represents the law because, in the case now under consideration, the judgment previously rendered was not upon default, but after an actual trial of the issues; and the sole question before us is whether the issues were the same in the earlier action as in this case.- I think we may properly concede that a finding that the lease made before September was for six months was not necessary to the determination of the earlier action; but the parties there litigated whether, in August-,, there was or was not a conversation between the parties which changed the nature of the tenancy from one from month to month to one for a definite period of six months. The determination of that fact was necessary to the determination of the main issue, and that fact once established is binding upon the parties forever after. In the case of Hawkins v. George Ringler & Co., 47 App. Div. 262, it was held that a judgment for one month’s rent under oral pleadings might establish conclusively the existence of a parol lease for a year, where the issue actually litigated was whether or not the tenant had held over after the expiration of his previous term; and the question of the duration of the tenancy could not be again litigated in any action for other monthly installments of rent. I can see no distinction between these cases.

The judgment should, therefore, be affirmed, with costs.

Judgment affirmed..  