Phipps v. Oprandy

69 A.D. 497 | N.Y. App. Div. | 1902

Goodrich, P. J.:

The plaintiff sued the defendant as surety upon a lease to one Canino of premises at Mount Vernon for a term of twenty-nine months, commencing December 1, 1898, at the yearly rental of $276, payable $23 monthly in advance. The complaint alleges that Canino failed to pay rent for September, October, November and December, 1899. It is alleged in the answer in substance that thé plaintiff agreed to give Canino the full enjoyment and occupancy of the premises with the use and enjoyment of “ water privileges, and the supply thereof upon said premises,” but that he “ violated the agreement upon his part, and ejected said Canino from said premises, depriving him of the use and enjoyment of water privileges- and the supply thereof upon said premises, during all that time, so that said Canino surrendered said premises and elected, as was his right thereunder, to terminate the contract for use and occupation aforesaid.”

. At the trial the plaintiff offered in evidence the judgment roll in an action in the City Court of Mount Vernon, wherein the present plaintiff was plaintiff and the present defendant was defendant. That action was brought on the guaranty for the rent for July and August, 1899, and the plaintiff recovered a judgment by default. The defendant objected to the introduction of the copy of the judgment roll on the grounds that it was not properly certified, that no complaint was served with the summons, and that the summons contained no facts which conferred jurisdiction.

The copy was properly authenticated by the certificate of the clerk of the court, under section 933 of the Code of Civil Procedure, and sections 106 and 107 of the charter of the city of Mount Vernon (Laws of 1892, chap. 182).

It makes-no difference that a copy of the complaint was not served with the summons. In Beaudrias v. Hogan (23 App. Div. 83) we held that the jurisdictional facts necessary to support the judg^ ment of a court of limited jurisdiction (in that case the City Court, of Yonkers), where such judgment is assailed, may be shown by parol, where the record fails to recite such facts. Although no-copy of the complaint was served upon Oprandy, we may resort to the complaint as evidence upon the question .of jurisdiction. It alleges that the plaintiff and defendant at the time of the commencement. of the action were residents of the city. It was verified August tenth; the judgment was rendered August twelfth, and the clerk certifies that the complaint is a part of the judgment roll.

The judgment roll was not essential to prove the default of Caninoin the payment of rent for September, October, ¡November and December, as there was other and direct evidence upon that point. But the defendant contends that it was not res adjudicata as to constructive eviction. The defendant proved that Canino left the premises before the last of May, 1899, and he offered evidence to prove that on May sixth the plaintiff shut off the water supply; that the premises were thereby rendered untenantable, and that subsequently Canino abandoned and left the premises on that account. To this the plaintiff objected on the ground that the judgment in the former action was res adjudicate/,.

In such former action the judgment was rendered by default, but the judgment is res adjudicata upon any defense which the defendant might have interposed. The defendant might have set up the defense of constructive eviction. But in the present action he alleges an actual eviction, a surrender of the premises by Canino, his right to terminate the lease and his occupation of the premises. " He proved that Canino abandoned the premises in May, that is, before the commencement'of the former action. That eviction and abandonment, if it constituted a defense, might have been set up in the former action, and as the defendant did not avail himself of it he is concluded by the former judgment.

The judgment should be affirmed.

All concurred.

Judgment of the County Court of Westchester county affirmed, with costs.