
    Joseph F. Blackgrove, as Receiver, Respondent, v. Joseph B. Flaherty, Appellant.
    (Supreme Court, Appellate Term,
    February, 1905.)
    Landlord and tenant — Action for rent — No proof — Submission of case by stipulation — Judgment.
    To the complaint in an action by a receiver commenced in December, 1904, to recover $300 rent for September, October and November, 1904, the answer, after a denial of the amount alleged to be due, admitted owing $200 rent for the last two months and as a separate defense alleged that on September 28, 1904, the plaintiff, as receiver, brought suit for the July and August, 1904, rent, recovered judgment and that the rent for September, 1904, became due and payable on the first day of that month. Upon the trial no proof was offered by either party but the case was by stipulation, submitted to the court upon the pleadings. Held, that e£ judgment in favor of plaintiff should be reversed upon the ground that there -\vas nothing upon which to base it.
    Scott,' J., dissented.
    Appeal by defendant from the Municipal Court of the city of New York, fourth district, borough of Manhattan, which rendered a judgment in favor of the plaintiff.
    Samuel W. Phillips, for appellant.
    Peter Eagan, for respondent.
   McCall, J.

This action was begun by the service of a summons and a verified complaint upon the 7th day of December, 1904, and the complaint, after setting forth the necessary allegations as to plaintiff’s appointment and qualifications as receiver, etc., alleges that the defendant is the lessee of certain premises for the rent of which the plaintiff is entitled to recover, and that the rent for the months of September, October and November, 1904, are due and unpaid, amounting to the sum of $300, and that such rent, according to the terms of the lease, was at the rate of $100 per month, payable in advance upon the first day of every' month.

By a verified answer, the defendant denies that there is due and payable to the plaintiff said sum of $300 rent for the months of September, October and November, 1904, but admits owing $200 rent for the months of October and November, 1904, and the. same was paid by him into court.

The answer then sets up as a separate and distinct defense “ that on September 28th, 1904, the plaintiff herein in his capacity as receiver, commenced an action in this court against the defendant to recover the sum of $200 for rent of said premises for the months of July and August, 1904, and recovered a judgment in said action ” and then alleges that the rent for the month of September, 1904, became due and payable on the first day of September, 1904. The answer also demands judgment for a dismissal of the complaint. No proof was offered by either party upon the trial. There is a stipulation attached to the record signed by the attorneys for the respective parties, to the effect “ that the above entitled action was submitted to the trial court upon the pleadings herein.” The plaintiff had a judgment for the full amount claimed in his complaint. No agreed statement of facts is submitted and, as no reply is permitted in a Municipal Court action, the allegations set forth in the answer as a defense must be considered as having been denied.

As the pleadings stand, the plaintiff’s allegation in the complaint that the sum of $300 is due from the defendant is denied as to $100 part thereof, and the defendant’s affirmative defense is also denied. Attached to the record there are two so-called “ statement of facts,” one signed by the plaintiff’s attorney and the other by the defendant’s attorney. The defendant alleges' in his statement that prior action was begun by this plaintiff on September 28, 1904, at which time the September rent had accrued, which action resulted in a judgment in favor of the plaintiff for the rent for the months of July and August, and that for the reason that the September rent was not included in the recovery had in that action the plaintiff is now precluded from recovering in this.

The plaintiff’s statement contains no admission of the recovery of such, a judgment. He admits that an action was instituted to recover the rents for the months of July and August, 1904, and states that after several adjournments the defendant paid the said rent into court, but as to whether there was ever a judgment entered in such action he is silent. These statements, of course, are not proof upon the questions put in issue by the pleadings, -and there is no agreement that the court below might determine the issues upon those statements. The most that can be said is that the stipulation above referred to permitted the court below to decide the case upon the pleadings and in the absence of proof the court below had no foundation upon which to base a judgment for either party.

Judgment reversed, new trial ordered, with costs to abide the event.

Giegerich, J., concurs.

Scott, J. (dissenting).

The evident intent of the parties was to admit that an action had been commenced after September 1st for the July and August rent and had proceeded to judgment. As the September rent was due when the action was begun, it should have been included. Lorillard v. Clyde, 122 N. Y. 47. I see nothing to be gained by reversing the judgment merely to allow formal proof of a conceded fact.

The judgment should be reduced to $215, and as reduced should be affirmed, without costs.

Judgment reversed, new trial ordered, with costs to abide event.  