
    Abraham Levy and Another, Copartners Trading as Levy & Abrams, Respondents, v. Harry Gerzog and Others, Trading as Gerzog, Caroll & Cohen, Appellants.
    Supreme Court, Appellate Term, First Department,
    February 10, 1926.
    Judgments — res adjudicata — action for rent — judgment in prior action not res adjudicata.
    A judgment in an action for the December rent of premises on the ground that the rent had become due prior to the alleged surrender of the lease, is not res adjudicata in an action for the January rent of the same premises.
    Appeal by defendants from judgment of the Municipal Court, Borough of Manhattan, Second District, in favor of the plaintiffs.
    
      John T. Fenlon, for the appellants.
    
      Melvin L. Krulewitch, for the respondents.
   Per Curiam.

The order made by Mr. Justice Hoyer in the prior, second, action for the January rent seems to have been made on the theory that the judgment in the first action for the December rent, affirmed by this court, was res adjudicata in the second action. As the judgment in the first action was affirmed solely on the ground that the rent had become due prior to the alleged surrender there was no basis for such a finding. Further, the order of Mr. Justice Hoyer was not an appealable one, and under the circumstances such order does not prevent a consideration of the merits in this action. (Dwight v. St. John, 25 N. Y. 203; Riggs v. Pursell, 74 id. 370.)

Judgment reversed and a new trial ordered, with thirty dollars costs to the appellants to abide the event.

All concur; present, Bijur, Delehanty and Wagner, JJ.  