
    Adolph Luthy, App’lt, v. James Regan, Resp’t
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 13, 1891.)
    
    Landlord and tenant — Wren transfer of title does not affect RELATION.
    Defendant recovered in an action against the plaintiff for damages to premises during his tenancy. In that action he testified that he was the owner of the premises, but it was afterwards discovered that he had conveyed them to his wife. No change of possession had taken place, but he had continued to collect the rents as before. Held, that this furnished no ground to vacate the judgment, as the relation between the parties was not changed, and the change of title could have been discovered by due diligence.
    Appeal from a judgment at special term dismissing the complaint, with costs, and vacating injunction granted herein pendente lite.
    
    The action is brought to restrain defendant from disposing of or enforcing a district court judgment and for damages, on the ground that newly discovered evidence has come to the knowledge of the plaintiff since the judgment was rendered by the district, court
    
      W. K. Hall, for app’lt; Earley & Prendergast, for resp’t.
   Van Brunt, P. J.

The plaintiff was a tenant of the defendant of certain premises in the city of New York, from year to year,, until the 1st of May, 1890. In May, 1890, the defendant sued the plaintiff in the ninth district court to recover damages which had been sustained by the premises occupied by the plaintiff during his tenancy. 'The pleadings were oral. The complaint was. for damages to the respondent’s house while in the possession and. occupation of the appellant. The answer was a general denial,, and the case was tried before a jury, and resulted in a verdict in favor of the respondent. Prom this judgment the appellant appealed to the general term of the court of common pleas.

Subsequently, the appellant brought this action for the purpose-of having the district court judgment vacated and for damages,, upon the ground of newly discovered evidence.

It appeared upon the trial of this action, in response to a question of his counsel whether he was the owner of the premises, the-respondent answered yes, whereas on the 28th of January, 1890, by deed duly recorded, he had conveyed the premises to his wife. This fact, which the appellant ascertained since the trial, is the ground upon which he claims to succeed in the action in this-court.

It appeared that no change in the possession occurred at or after the time of the delivery of the deed, the respondent continuing in. possession and collecting the rents as before.

Upon this state of facts the court below held that the action was not maintainable, and from the judgment thereupon entered this appeal is taken.

It seems to us there was no error in the disposition of the-case by the court below. No matter where the legal title to the premises in question might be, the defendant was in possession of the premises, acting as landlord, and receiving the rents, the wife making no claim whatever thereto.

The respondent, therefore, continued to be the lessor of the appellant, and the relation between them was in no respect changed.

If, however, the question as to the person in whom the legal, title was vested had been material in the district court action, it was one of the issues involved in that action and the appellant was bound to use due diligence in ascertaining whether or not the respondent was the owner of those premises. The deed from the respondent to his wife was upon record, and if ordinary diligence had been used for the purpose of ascertaining where the legal right was, it might easily have been ascertained. But it is extremely doubtful whether that was a question of any importance in the district court case, in view of the relations of the parties and of the fact that the' respondent was in-possession and exercising acts of ownership presumably with the knowledge and assent of the wife.

The judgment should be affirmed, with costs.

Daniels, J., concurs.  