Kelsey v. Ward

16 Abb. Pr. 98

Opinion

By the Court.

*—Brown, J.

Some of the questions which arise upon this appeal have 'already been considered and determined by this court. In the case of The People on rel. Bobert M. Ward and others a. Charles Kelsey, which was a certiorari, brought to review the proceedings brought before the judge of the City Court of Brooklyn by Charles Kelsey to remove his tenants, the present defendants, from the possession of the demised premises mentioned in the pleadings in this action, we decided that the pier which Charles Kelsey agreed to erect for the use of the defendants, by the agreement in writing, of the date of 9th June, 1859, was lands and tenements within the meaning of the Landlord-and-tenant Act, and could be the subject of demise to tenants reserving rent therefrom. We also determined that the agreement in writing referred to, was in effect a lease to the defendants Ward, Gove & Morris, and created the relation of landlord and tenant between them and the plaintiff Charles Kelsey, and that having accepted the lease and entered into the possession, they were estopped from disputing Kelsey’s title to the demised premises.*

The present action is brought to recover one year’s rent for the pier, from the 1st of January, 1860, reserved in the lease or written agreement of the 9th of June, 1859.

The answer first denies the allegations of the complaint, except the execution of the written agreement. It then alleges the pendency of four several actions in the court by the plaintiff against the defendants, to recover $425 in each action, upon the allegation that the rent reserved was payable quarterly; which actions were then still pending and undetermined, and which were for the same cause of action and claim for which this action is brought. It also set out an agreement in the said written instrument to dredge the slip in front of the Union Stores in the vicinity of the said pier, within a reasonable time, and then alleged the omission and breach of the agreement, claiming $5,000 damages. The answer also set up that the plaintiff entered into and upon the premises so agreed to be dredged out, and erected thereon a nuisance in the form of a large stone and wood crib, and suffered the same to remain and continue, and so obstructed the navigation and depth of the water in the approach to the pier; claiming damages which accrued thereby, to the extent of $5,000. To the last-named cause of defence, the plaintiff interposed a demurrer, and the issue made thereby was heard at the special term, and judgment thereon rendered for the plaintiff.

To the counter-claim for the breach of agreement to dredge out the slip, the plaintiff put in a reply denying the same, and no proof was given or offered upon the trial, upon the issues thus formed.

The issues of the fact were tried before Mr. Justice Scrugham and a jury at the Kings county circuit in the year 1862. The plaintiff proved the due execution of the agreement or lease of the date of the 9th of June, 1859, and the lease therein referred to. He also proved the summary proceedings under the Landlord-and-tenant Act, before the judge of the City Court of Brooklyn, between Charles Kelsey the landlord, and the defendants in this action, his tenants, and to which I have already referred. From these proceedings, and the testimony given by George G. Reynolds, Esq., the city judge of Brooklyn, it appears that the questions litigated before the jury were, whether the addition to the pier was built and finished on or before the 1st day of January, 1860, and whether the tenants accepted it at that time, and entered into the possession thereof. The judge instructed the jury,—he said : “That if they found it was completed, and the parties went into the occupancy and accepted it at that time, the question whether it was finished in accordance with the terms of the agreement could not be determined in these proceedings.” The jury found in favor of the landlord, and thus affirmed two facts:—1, that the addition was built and finished before the 1st of January, 1860; 2, that the defendants (the tenants) went into occupancy on that day, and accepted the pier, and thus became the tenants of the landlord, Charles Kelsey, at the rent 2'eserved. Upon these two questions the summary proceedings were an adjudication, which precluded the defendants from litigating them in the present action. They were res adjudicata. (Lawrence a. Hunt, 10 Wend., 80; Barker a. Rand, 13 Barb., 152; White a. Boatsworth, 6 N. Y., 137; Hyatt a. Bates, 35 Barb., 308.)

The offer of the defendants to show that the pier was not built in the manner provided by the agreement, was inadmissible to establish that the relation of landlord and tenant, in respect to that, did not exist; because, having accepted it and entered into the possession, they were concluded. Nor was it a defence to the action for the rent. It was not alleged as a counter-claim, or a claim by way of recoupment. Their only other remedy for the omission to construct the pier according to the terms of the agreement, was by an action to recover damages for the breach, if it really existed.

The defendants’ counsel next offered to prove the pendency of the other actions referred to in his answer. This evidence was objected to, and the objection sustained by the court, and the defendants excepted. To constitute a good plea of autre action pendant, either in bar or abatement, under the old system of pleading, it must appear that the suit pending was for the same identical cause of action as that in which the pléa was interposed. The rule must still be the same in respect to an answer. Tested by this principle, the proof offered was inadmissible. This action is for a year’s rent, the complaint setting out a lease reserving rent yearly. The actions which the defendants claim are pending for the same cause, are said in the answer to be upon a contract for rent payable quarterly, and are each for one quarter’s rent. It is evident they are not for the same identical cause of action as that for which the present suit is brought.

We think the judge did right to order the jury to find a verdict for the plaintiff for a year’s rent, and the interest, and the judgment thereon should be affirmed.

Present, Scrtjqham, Brown, and Lon, JJ.

This decision is reported in People on rd. Ward a. Kelsey, 14 Ante, 372.