Opinion
March 2, 1906.
Brainard Tolles [ Garrard Glenn and George W. McAdam with him on the brief], for the appellant.
Robert C. Beatty, for the respondent.
The defense in bar of a former adjudication was made out.
There is evidence by the plaintiff that after the purchase period had expired he spoke to the defendant about the $10,000, and that he denied that he had received it or any sum of the plaintiff on the purchase option; but there is no evidence that the plaintiff made the demand for the return thereof or that it applied on the rent, which is alleged in the complaint. On the contrary, he testifies that he told the defendant that "we could take it out of the rent," and he repeats several times that he elected to have it applied on the rent. Moreover, his election was not necessary — indeed he had no right of election — for by the alleged oral agreement under which it was paid, as the plaintiff claims, it was to be held by the defendant and applied on the rent as it came due if the plaintiff did not take title under the purchase option, unless the defendant chose to pay it back with interest at six per cent.
This being the contract relation between the parties, the defendant showed that he had on January 4, 1901, in the Municipal Court of the city of New York, begun landlord and tenant proceedings under the statute to remove the plaintiff from the demised premises for non-payment of the rent which came due under the lease of November 1 and December 1, 1900, and January 1, 1901, and on due service of the precept on the plaintiff, and his appearance and consent on the return day, obtained a final order therein of removal, upon which a warrant was issued, but not executed because the plaintiff paid the rent in arrears, and he has continued in possession and paid the rent ever since.
This adjudication imports absolute verity, and is conclusive evidence that the plaintiff owed the defendant the rent alleged to be due in the petition, and that the defendant had the right to remove him for non-payment thereof, for that could not be the case if the defendant then had in his hands $10,000 of the plaintiff which he held by contract between them for the payment of the rent as it came due. That would have been a complete defense, and was necessarily comprehended in the issue whether the plaintiff was in arrears for rent and could be removed therefor ( Nemetty v. Naylor, 100 N.Y. 562; Reich v. Cochran, 151 id. 122; Barber v. Kendall, 158 id. 401; Brown v. Mayor, 66 id. 385).
Apart from the foregoing, a careful reading of the evidence shows that the case is a grave one for the consideration of a motion to set the verdict aside on the ground of the weight of evidence, and the suggestion by this court on that head when the case was here before ( 104 App. Div. 94) should be heeded.
The judgment should be reversed.
HIRSCHBERG, P.J., WOODWARD, RICH and MILLER, JJ., concurred.
Judgment reversed and new trial granted.