Opinion
February, 1907.
Morris Meyers, for appellants.
Leopold W. Harburger, for respondent.
The landlords by verified petition, claiming their tenant was a tenant from month to month, sought to dispossess him on the ground that he was a hold-over. The tenant by verified answer, among other things, denied that he was a monthly tenant. The only proof of the nature of the tenancy was the introduction in evidence of the summons and complaint in a prior action between the same parties to recover for rent due. That complaint was verified, and recited "such occupation and tenancy being from month to month, and being at the rate of one hundred and twenty-three dollars and fifty cents ($123.50) per month, payable in advance, on the first of each and every month during which said defendant occupied said premises." On the reverse of the summons was indorsed, "Judgment for the plaintiff for damages, costs and extra costs in the sum of $133.57." The defendant defaulted but, as appears from the summons, paid that amount into court. Such proof the trial justice properly held insufficient to establish a monthly tenancy in the present dispossess proceeding; for, though res adjudicata applies to judgments rendered upon default (Brown v. Mayor, 66 N.Y. 385, 390), it applies only and finally to every fact decided that had relation to the issue and necessary to its determination. House v. Lockwood, 137 N.Y. 259, 268. The nature of the tenancy, whether by the month or the year, was not necessary to determine liability for rent alleged to be due; and, from the record of that action introduced herein, the nature of the tenancy does not appear. The judgment should, therefore, be affirmed, with costs.
GILDERSLEEVE and AMEND, JJ., concur.
Judgment and final order affirmed, with costs.