Summary
In Geisler v. Acosta (9 N.Y. 227) the court held that the plea of res adjudicata could not be disposed of on affidavit of the tenant.
Summary of this case from Fritztuskie v. WauroskiOpinion
December Term, 1853
J.M. Martin for the plaintiffs in error.
E. Terry for the defendant in error.
The first paper presented by Geisler and Weigand did not profess to deny any of the facts upon which the summons was issued. It did not therefore raise any issue to try which a jury could be summoned; and the magistrate was right in his decision to that effect. (2 R.S., 513, § 28 et seq.) As a plea of a former trial and determination of the same matter, supposing that such a defence could be interposed, the paper was defective. It did not show that any facts were controverted on the former proceeding, or what the issue there tried or determined was. It did not even show that the landlord's affidavit stated the same facts with the one presented on the last occasion. All that is stated is that it related to the same premises and the same rent. For aught that appears it may have omitted to allege that a demand of the rent had been made; and the landlord may have been defeated for want of such an averment, or the landlord may have stated a demand and failed to prove it; and the demand upon which the second proceeding was instituted may have been made after the first proceeding was ended. That paper therefore contained nothing to authorize the magistrate to arrest the proceeding.
The remaining question is whether a demand of the rent of one of two lessees was sufficient to authorize the proceeding. Geisler swore that no demand of the rent had ever been made of him, and the question is whether this raised a material issue which made it the duty of the magistrate to summon a jury, Weigand having made no affidavit, and Geisler not denying but that a demand had been made of Weigand. The statute authorizes the proceeding where a tenant holds over without permission after a default in the payment of rent, and where "a demand of such rent shall have been made." (§ 28, sub. 2.) We are to intend that there was a joint demise to both, for Acosta's affidavit is that they were both indebted for the rent, and this is not denied by the affidavit of Geisler. He swears that both had given the collateral security, which confirms the idea that the rent was due upon a demise to the two. Each of the lessees was therefore a debtor for the whole amount of the rent, and we are of opinion that a demand of one of them was sufficient to authorize the issuing of the summons. In Crowder v. Shee (1 Camp., 437), it was held that where several were liable to an attorney for business done, but the statute required a bill of costs to be delivered before suit brought, a delivery to one was sufficient as to all. A demand of payment of a promissory note of one of several makers who are partners is sufficient to charge the endorser. ( Story on Prom. Notes, § 239.) Although there is no proof that the defendants were partners, they as joint lessees of the store had each an immediate concern in protecting their possession by the payment of the rent. Where several are jointly bound to do an act upon notice to them, notice to one is sufficient. ( Com. Dig., tit. Condition, L, 9.)
There was no error of which the present plaintiffs in error can take advantage in the reversal of the order by the court below, as to Arnold and Beman, nor in the magistrate refusing to summon a jury as to them. Geisler and Weigand did not deny that they were in possession of the premises, but impliedly admitted it. The judgment of the supreme court should be affirmed.
If a plea of a former proceeding under the statute (2 R.S., 512) be admissible as a bar to a subsequent proceeding for the same cause, it must state such facts as will show that the point now in controversy was then litigated and decided. It appears by the affidavit on which the former proceeding was based, and which was set out in the plea, that no demand of the rent had been first made by the landlord, nor three days' notice in writing given, requiring the payment thereof or the possession of the premises. This alone was such a defect of the landlord's title to maintain the proceedings, that the alderman was bound to give judgment for the defendants, dismissing the matter as prematurely instituted. The plea is therefore defective in not showing that the case was decided upon the merits, and was for that reason properly overruled by the alderman. I am also of opinion that the statute does not contemplate pleading in these summary proceedings.
The supreme court reversed the judgment of the alderman as to Arnold and Beman on the ground that the affidavit of Arnold controverted the fact of being in possession under Geisler and Weigand, the lessees. It will be seen on a critical examination of the affidavit that it does not controvert even that fact. The affidavit of the landlord was made on the 7th of February, and affirms that Arnold and Beman, the under-tenants of Geisler and Weigand, hold over, c. The affidavit of Arnold, made the day following, does not deny that he and Beman were, on the 7th of February, the under-tenants of Geisler and Weigand, but merely denies that they were so on the 8th of February, when his affidavit was made. They may well have been under-tenants of Geisler and Weigand on the 7th, and attorned to a stranger or surrendered their possession on the 8th. Their affidavit does not make an issue with that of the landlord, and the supreme court should not have reversed the judgment as to them. But as the landlord has not brought a writ of error to reverse that judgment, we cannot disturb it in the present action.
The main ground relied on in this court to reverse the judgment of the supreme court against Geisler and Weigand is, that the judgment of the alderman against Arnold and Beman being wrong, the judgment against all the defendants should be reversed. Now, if it appears that the judgment in question was not erroneous, the fact that it was reversed by the supreme court affords no reason for this court to reverse the judgment against Geisler and Weigand, which was clearly right. If this be not so, it must be upon the principle that the commission of one error by the court below, justifies this court in committing another.
In an action upon a joint contract against several it is well settled that a judgment cannot be reversed as to one, and affirmed as to others, even though there be some matter of discharge as to one ( Richard v. Walton, 12 John., 434; Duncan v. Sandford, 14 John., 417; Cruikshank v. Gardner, 2 Hill, 333); and the same rule applies whether the judgment be in tort or on contract. ( Sheldon v. Quinlen, 5 Hill, 441; Harman v. Brotherson, 1 Denio, 537.) But in all the above cases there was error as to one party which led to a reversal as to all. In the present case, although the court below reversed the judgment as to two of the defendants, they did so erroneously, and we are called upon to adopt that error as good law, and therefore reverse the judgment as to the other defendants against whom it was right. This we are not required to do.
Both courts were right in holding that Geisler's affidavit did not put in issue the demand of the rent by the landlord, before commencing the proceedings. The landlord swears that it had been demanded of Geisler and Weigand. Geisler merely swears that it had not been demanded of him. A demand of it from either Geisler or Weigand was a good demand, and satisfied the averment that it had been demanded of Geisler and Weigand. The traverse of the defendant was not broad enough to cover the charge.
On the whole I think the judgment of the supreme court should be affirmed.
All the judges concurring,
Judgment affirmed.