18 N.Y.S. 801 | N.Y. Sup. Ct. | 1892
The question in this case relates to the effect of a judgment-in favor of the defendant against the plaintiff in summary proceedings to recover the possession of real property. In the complaint in the present case-it is alleged that on or about the 28th March, 1890, it was mutually agreed! between plaintiff and defendant that plaintiff should work for defendant at-painting and paper hanging for the term of one year from and after the 1st. day of April, 1890, at the price of $2 a day for each day, excluding Sundays, without loss of time, plaintiff to be paid weekly at the end of each week; that plaintiff entered upon the work on or about April 1st, and worked for the defendant until October 18, 1890, when the defendant discharged him, and refused to employ or allow him to work any longer; that plaintiff at. divers times offered to work and complete his contract, and has been ready and willing to perform, but defendant has always refused to allow him to do-so; that for 54 days of the time after October 18th, the plaintiff.was unable-to procure work elsewhere, although he often tried to do so; that defendant was indebted to plaintiff under said contract for $100, for which judgment was demanded. The answer contained a general denial, and also set up that defendant had good ground to discharge plaintiff, and that plaintiff had further employment. As a further defense, the summary proceedings hereinafter referred to were set up.
Upon the trial of the action it appeared from the testimony of the plaintiff that he was first employed by the defendant in August, 1889, by the day, and so continued to April 1st following. That during the winter he lived in the house of the defendant, paying seven dollars a month rent. That about 28th March, 1890, there was a conversation between plaintiff and defendant, in which plaintiff said he was going to leave on 1st April, because he could do-better elsewhere; and defendant replied he wanted him to stay, and he finally offered him two dollars a day'for a year, with no lost time, and to this plaintiff replied he would consider it a day or two. That on the morning of April 1st the subject was continued, the offer of defendant being repeated, and he-adding: “I was calculating to charge you $10 a month for the house after I fix it up, but I will let you have the house the same as you have been having-it,—for $7 a month for one year;” and that plaintiff replied that he would take him up at his offer, and commence there that morning. That plaintiff continued to work under that contract until October 18th, receiving his pay at the end of every week. That on the 18th October he was discharged, and was also told to find another place to live in. That on November 6th he paid
A judgment by default in such a summary proceeding is, as between the landlord and tenant, conclusive of the facts alleged in the petition, and which are required by the statute to be alleged as the basis óf the proceedings. Brown v. Mayor, 66 N. Y. 385. It is not conclusive as to the amount of rent due, but only that some is due. Jarvis v. Briggs, 69 N. Y. 143. We must therefore assume that at the commencement of the summary proceedings on the 6th January, 1891, the plaintiff owed defendant some rent. This alone would not affect the plaintiff’s cause of action, as alleged in the eomjplaint. But the argument is that the finding of the justice that some rent was