
    James T. Burdick, Appellant, v. Daniel Cameron, Respondent.
    
      Landlord and tenant — a judgment that rent was not dm because of the abandonment . of premises as untenantable—a bar to an action for subsequent rent— “ abandonment” implies surrender. ■
    
    The estoppel oí a former judgment extends to every material matter within the issue which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered.
    Where, in an action brought by a landlord for rent for the months of September and October, the tenant alleges as a defense that he abandoned the premises because they were untenantable, and the court renders judgment that the tenant must pay rent for the month of September only, and that he could not be held for subsequent rent because he had abandoned untenantable premises, the judgment constitutes a bar to the maintenance of a second action for the rent of the same premises during the succeeding months of November, December and a part of "January. Such a judgment constitutes a determination that the liability of the tenant, under the lease, ceased after the month of October.
    .An allegation by a tenant of abandonment of premises implies that he has surrendered them.
    
      Appeal by the plaintiff, James T. Burdick, from a judgment of the County Court of the county of Kings in favor of the defendant, entered in the office of the clerk of the county of Kings on the 13th day of June, 1896, upon the dismissal of the complaint upon the merits, directed by the court after a trial at the Kings County Court before the court without a jury.
    
      A. F. Van Thun, Jr., for the appellant.
    
      D. Cameron, for the respondent.
   Hatch, J.:

The action is brought to recover installments of rent, secured to be paid by the terms of a written lease, for the months of November and December, 1895, and for part of the month of January, 1896. The answer alleged that the premises were untenantable, and, on account thereof, that the defendant was compelled to remove therefrom. And, for a further defense, it was pleaded as a bar that heretofore, and upon the 28th day of October, 1895, action was brought in a Justice’s Court of the city of Brooklyn, by the plaintiff against the defendant, to recover rent upon the same lease for the months of September and October, 1895; that in such action the defendant set up as a defense to a recovery therein the untenantable condition of the premises, and that, by reason thereof, he was compelled to abandon and did abandon the same during the month of September, 1895 ; that a trial was had in such Justice’s Court, and that upon such trial the principal and material questions litigated were the untenantable condition of the premises, and the defendant’s liability for rent under the lease after his abandonment; that thereafter the court duly rendered a judgment upon the merits in this language: “ The defendant should pay the rent for September, 1895. He cannot be held for subsequent rent having abandoned untenantable' premises. Judgment is, therefore, rendered for the plaintiff for fifty dollars besides costs.” The court below has held that this judgment constituted a bar to the maintenance of the present action. In this view we think it was correct. The general rule of law is that a former judgment extends by way of estoppel “to every material matter within the issue which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered.” {Pray v. Hegeman, 98 N. Y. 351.)

The questions which were embraced within the pleadings and litigated upon the trial in the Justice’s Court were, whether the premises were untenantable, and whether the defendant had abandoned them. The execution of the lease was conceded. The right of the plaintiff to recover for the two months’ rent, unless his right thereto was defeated by the matters alleged in the answer, followed. The question before the justice, therefore, resolved itself into one of liar bility for rent under the lease. If the defendant’s liability continued, it so continued by force of the provisions of the agreement, not alone as to the installments of rent for which the action was brought, hut for all subsequent installments of rent which should thereafter fall due, unless changed conditions should appear. The determination of the justice resulted in a judgment for the September rent, and a denial of right to recover for the October rent based upon the ground that no further liability existed against the defendant for rent accruing by virtue of the terms of the lease after that time. The effect of this judgment was not limited to the October rent; it was a determination of the question of liability upon the lease, and, as such, was an adjudication that liability thereunder no longer existed.

The contention that the present suit is a separate and independent controversy, distinct from the one prosecuted before the justice, cannot be upheld. It is only distinct in the sense of being brought in another court and being for other installments of rent. But the right upon which the recovery must be based is identically the same, to wit, the validity of the lease. This lease, as we have seen, the former judgment declared to be invalid from and after the last day of September. There is not, therefore, in a legal sense, a distinct and independent cause of action. {Gardner v. Buckbee, 3 Cow. 120.)

The issue presented by the pleadings before the justice raised, as we have seen, the question whether the defendant could legally, and did in fact, abandon the premises. These questions the judgment shows, by its recital, were determined by the justice; it was received in evidence without objection, and is sufficient for that purpose. The case last cited is authority for the rule that, if the judgment failed of recital in this respect, parol proof would be admissible to establish the fact that the questions were litigated and determined. (Id. 12L) There it was said that the jury must have passed upon the fraud, as it was necessary and essential to the determination reached. (Lorillard v. Clyde, 122 N. Y. 41.) In the suit before the justice he must have passed upon the question of the defendant’s liability under the lease and determined that the lease was invalid, else the plaintiff was entitled to recover for the October rent. The judgment rendered says that he did pass upon it. That judgment is as much a denial of the right to recover further rent under the lease, as of affirmance of the right to recover for the September rent. The one is as broad as the. other, and both were before the court for determination.

The criticism that the answer did not allege that the defendant surrendered possession of the premises is unfounded. lie alleged abandonment and that implies a surrender. (1 Burrill’s Law Dict- p. 6.)

We are not now concerned with the question whether or not the facts which were alleged in the answer, or which appeared before the justice, would legally sustain the conclusion reached by him. He had jurisdiction of the subject-matter and of the parties, and could, therefore, render judgment, and such judgment remains, effective while it stands.

The judgment appealed from should be affirmed, with costs.

All concurred.

. Judgment affirmed, with costs.  