Ettlinger v. Kruger

147 N.Y.S. 37

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 16, 1914
• Status: Published

Opinions

LEHMAN, J.

The plaintiff herein has brought three actions for installments of rent, due under a lease. The litigation of action No. 1 necessitated a number of trials and appeals. While that litigation was still pending, the plamtiff brought actions Nos. 2 and 3 for subsequent installments of rent.’ Before the appeals in action No. 1 were ended, action No. 3 appeared on the day calendar, and was ordered on trial. The parties then stipulated in open court, on December 17, 1912, that the action be adjourned until December 24th, for the purpose of permitting the defendant to give the plaintiff a surety company bond, providing, for the payment of the amount involved in the action, with costs, in the event of the ultimate affirmance of the judgment in action No. 1, “otherwise the case will be tried on December 24th.” The issues raised by the pleadings in action No. 3 were exactly the same as in action No. 1, viz., whether the plaintiff had accepted the defendant’s assignee as his tenant in place of the defendant, thereby establishing a surrender of defendant’s term by operation of law, and the judgment roll in that action would have been res adjudicata in action No. 3 under the pleadings as they then stood. In December, 1913, the defendant, however, learned that the plaintiff hád requested in writing a surrender from the assignee’s trustee in bankruptcy, and had received the keys of the premises from him previous to the time when the installments sued for in action No. 3 became due. Thereupon the defendant moved to be relieved of his stipulation, and to amend his complaint, by pleading a surrender, through the acceptance of the keys, and thereafter leasing the premises to a third party. The defendant now appeals from the' denial of this motion.

In my opinion the trial justice properly denied this motion. The defendant, when the case was on the day calendar, had under the pleadings no defense which he could have interposed. To avoid the necessity of a formal trial and appeal, the parties made the stipulation that a bond be given to pay the amount involved if the issues in the first or test case be finally adjudicated against him. At that time he was bound to be ready for trial, and if there were any defenses which he could interpose, he was bound to be diligent in preparing those defenses. Having gained the advantage which he sought by the making of the stipulation, he should not now be put in any better position than if he had not made the stipulation and proceeded with the trial. In other words, he should not be relieved from his stipulation because he now has discovered that he might have raised other issues, not dependent upon the outcome of the first litigation, if by due, diligence he might have discovered the existence of the facts upon which those issues could be based, before he entered into the stipulation at the time when the case was on the day calendar.

It appears that these facts were discovered in December, 1913, of a year after the stipulation was made, by reason of the circumstance 'that he was then searching the records of the bankruptcy courts, because he had learned, for the first time, that the plaintiff had been paid a dividend in the bankruptcy proceedings upon a claim against the assignee for the installments of rent covered by action No. 2. Inasmuch as he proved on the trial of action No. 1 that a claim for the earlier installment had been made in the bankruptcy proceeding, ordinary care would have required him to search the bankruptcy records to determine the disposition made of the claims. It is true that such a search would not have disclosed in the records the facts upon which the defendant bases this motion, but it is illuminative of the lack of diligence shown by the defendant in preparing for the trial, which he avoided by mating this stipulation.

The defendant did know that the plaintiff had made a claim in bankruptcy, had received the keys from the trustee, and had thereafter leased the premises to a third party. If with knowledge of these facts •he made no investigation to determine the manner in which the plaintiff had obtained the keys, then he should not be permitted to claim that the stipulation was obtained by inadvertence. If there had been a trial of the issues in action No. 3, the defendant could not have obtained a new trial on the ground that he had discovered new evidence, when that evidence would have been discovered if he had exercised reasonable ¡care, and he should not be relieved of a stipulation to pay the amount involved without a trial on any similar ground.

In my opinion if there is any difference, the defendant, to succeed on this motion, should be required to show even stronger grounds than would be necessary to obtain a new trial, for the stipulation is in effect a contract made upon good consideration, of which he has had the benefit.

The order should be affirmed, with $10 costs and disbursements.

SEABURY, J., concurs.