Opinion
May, 1912.
Maurice Nagler, for appellant.
Bernard Gordon, for respondents.
This is an action for rent. The defendants plead a counterclaim for damages for an alleged partial eviction. Against the defendants' counterclaim, the plaintiff relies upon a final order heretofore made in favor of the plaintiff and against these defendants in summary proceedings. This final order was res adjudicata upon the issue as to whether the defendants, as tenants, continued in possession of the premises, and as to whether the defendants defaulted in the payment of the rent reserved. Reich v. Cochran, 151 N.Y. 122; Meyerhoffer v. Baker, 121 A.D. 797. If the defendants had been evicted, it is clear that they could not have continued in possession, and that rent was not due. To allow the defendants now to set up the defense of eviction is to permit them to controvert facts essential to the plaintiff's right to the final order. The direct converse of what these defendants have been permitted to prove was conclusively established by the final order.
It follows that the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.
GUY and GERARD, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.