
    Maggie Fritztuskie, Appellant, v. Frances Wauroski, Respondent.
    Res adjudicata—that defense must be raised in summa/ry proceedings by answer, not by motion — what objections may be raised by motion.
    
    In a summary proceeding, instituted by a landlord against a tenant in the Municipal Court of the city of New York, to recover possession of premises for non-payment of rent, the tenant cannot raise the defense of res adjudicata by motion, but must do so by answer.
    
      Semble, that the defendant can only raise, by motion, objections to the jurisdiction of the court, the sufficiency of the petition, notice and other cognate matters.
    Appeal by the plaintiff, Maggie Fritztuskie, from a final order of the Municipal Court of the city of Hew York, borough of The Bronx, entered on the 20th day of January, 1903, dismissing the plaintiff’s petition.
    
      Richard F. McKiniry, for the appellant.
    
      Willoughby B. Dobbs, for the respondent.
   Jenks, J.:

I think that this judgment must be reversed. The petitioner sought a final order awarding her possession of the premises. The court issued precept and the record shows that on the return day the plaintiff appeared and complained of the defendant for nonpayment of rent, and that the defendant appeared and moved for dismissal of the petition on the ground that the proceeding was res adjudicata. The court granted the motion.

The learned Municipal Court justice writes: “ The issues in this proceeding were tried before Justice Tierney in the proceedings of Josephine Sodlickie against Frances Wauroski, and it was decided that the relationship of landlord and tenant did not exist between Maggie Fritztuskie and Frances Wauroski. Final order '20th January, 1903, dismissing the proceeding.”

But I think that there were no issues. An issue arises when a question of fact or a conclusion of law is maintained by one party and controverted by another. The procedure of summary proceedings contemplates an answer. (Code Civ. Proc. § 2244.) Even when the tenant filed a counter affidavit, MoAdam, J., held that it did not constitute a valid plea under the said section. (See, too, People ex rel. Allen v. Murray, 2 Misc. Rep. 152, 155, 159, 160; affd., 138 N. Y. 635.) While the tenant could have taken objection by motion “to the jurisdiction of the court, the sufficiency of the petition, notice, &c.,” I think that she is limited to these and cognate matters (Deutermann v. Wilson, 15 Civ. Proc. Rep. 411), and that she could not raise the question of res adjudicata by mere motion upon the proceedings and without plea upon her part. In Geisler v. Acosta (9 N. Y. 227) the court held that the plea of res adjudicata could not be disposed of on affidavit of the tenant.

If, as the Municipal Court held, this litigation should be regarded as an action for the non-payment of rent, then I think that the defendant should have raised the question by plea. Section 168 of the Municipal Court Act (Laws of 1902, chap. 580) provides : In pleading a judgment or other determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction, but the judgment or determination may be stated to have been duly given or made. If that allegation is controverted, the party pleading must, on the trial, establish the facts conferring jurisdiction.This contemplates the joinder of issue.

The record does not show that the former proceedings were read in evidence, nor do I see how they could have been so read without issue. These proceedings are returned, however, on the present appeal. Inspection of them simply accentuates my conclusion. They consist of petition by Josephine Sodlickie against Frances Boroske, and of precept, on which is indorsed by Justice Tierney “ Final order is, therefore, made the 20th day of May, 1902, dismissing the proceeding.” The mere showing that proceedings to regain possession of the same premises between different parties had been dismissed is not res adjudicóla, irrespective of any proof by plaintiff, and beyond counter proof by defendant. (Lewis v. O. N. & P. Co., 125 N. Y. 341; Reynolds v. Ætna Life Ins. Co., 160 id. 635.)

The judgment should be reversed and a new trial ordered.

Goodrich, P. J., Bartlett, Hirsohberg and Hooker, JJ.,. concurred.

Final order in summary proceedings reversed and new trial ordered, costs to abide the event. 
      
       See Yuelin v. Meade (1 Civ. Proc. Rep. 446).— [Rep.
     