Pierson v. Hughes

102 N.Y.S. 528

Opinion

MacLEAN, J.

The plaintiff claimed for rent for the months ending on the 23d day of August, September, October, November, and December, 1903, alleged to be due for certain dock property leased by the defendants on December 23,1901, for a term of one year, at the monthly rental of $100, payable in advance, and judgment was rendered in his favor therefor.

The defendants may not now avail themselves of the defense either of trespass or of eviction, whichever it be, as set forth in the seventh paragraph of their answer, as a former judgment in favor of the pla. itiff for rent for April, May, June, and July, 1903, against these defendants, was affirmed by this court holding these defendants tenants for another year under the conditions of the written demise (Pierson v. Hughes [Sup.] 87 N. Y. Supp. 223); and that judgment “is final and conclusive between the same parties or their privies, not only as to matters actually .determined, but as to every other matter which the parties might have litigated and had decided as incident to, or essentially connected with, the subject-matter of the litigation within the purview of the original action, either as matter of claim or defense” (Earle v. Earle, 173 N. Y. 480, 487, 66 N. E. 398).

Nor may the defendants successfully counterclaim herein for rent received by the plaintiff from the city for a public bath placed at the end of the wharf, for “the defendants had granted to the plaintiff a license, at least, ‘for people’ to pass, ‘with egress to and from a bath.’ This license was unrevolced, and it is not shown that the plaintiff gave to the city any greater license than the defendants had granted him.” Pierson v. Hughes (Sup.) 87 N. Y. Supp. 225.

The judgment should therefore be affirmed, with costs. All conchr.