Yonkers & New York Fire Insurance v. Bishop

New York Court of Common Pleas

Yonkers & New York Fire Insurance v. Bishop

1 Daly 449

CourtNew York Court of Common Pleas

DecidedFebruary 15, 1865

StatusPublished

Cited by11 cases

This text of 1 Daly 449 (Yonkers & New York Fire Insurance v. Bishop) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Yonkers & New York Fire Insurance v. Bishop, 1 Daly 449 (N.Y. Super. Ct. 1865).

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Opinion

By the Court.

Daly, F. J.

In the summary proceedings instituted by the plaintiff to dispossess the defendant, the defendant traversed the second allegation that he was indebted to the plaintiff for two quarters’ rent, from the first of May to the first of November, 1863, that he had made default in the payment of the rent, that he had held over after making default, without the landlord’s permission, that the rent had been demanded of him; and set up in his affidavit the facts upon which he now relies as constituting the eviction. The present action [451]*451was brought to recover the quarter’s rent from the first of ¡May to the first of ¡November, 1863, so that the question at issue in this action, whether the defendant was indebted for that quarter, was at issue in the summary proceedings.

The issue created by the affidavit in that proceeding presented substantially two questions, 1. "Whether the defendant was indebted for the rent alleged in the plaintiff’s affidavit to be due, and 2. Whether it had been demanded so as to entitle the plaintiff (under the statute) to institute the proceedings; upon either of which questions, the verdict of the jury in fa-var of the defendant was conclusive and final.

It was settled by the highest Court of authority in this State, in White v. Coatsworth (2 Seld., 137), that the verdict of a jury in summary proceedings that no rent was due from the tenant to the landlord, was conclusive upon that question, and a harto any further or other proceeding on the part of the landlord for the rent.

The jury in this case may have rendered their verdict upon the ground that no rent was due, and where that appears upon tlxe inspection of the proceedings, it was with the plaintiff, and not with the defendant, to show that that question was not raised upon the evidence submitted to the jury, and that their verdict upon the evidence before them must have been upon the other ground that no demand was made for the rent (Bagot v. Williams, 3 Bar. & Cres., 235.; Seddon v. Tutop, 6 T. R., 607 ; Phillips v. Berick, 16 Johns.., 136 ; Hale v. Andrus, 6 Cow., 225 ; Snider v. Croy, 2 Johns. R., 229).

The defendant offered to show by the testimony of the jurors, that they found their verdict solely upon the ground that he had been evicted by title paramount, but the referee would not allow him to do so, holding that the verdict of the jury in the summary proceedings was not res adjudioeitco upon the question of eviction. In this he was in error, and as the plaintiff did not show that the question of the defendant’s indehtedness for the quarter’s rent was not before the jury, the referee should have found for the defendant. A matter which, has once been judicially determined between the same parties, is not to be agitated again (Duchess of Kingston's Case, 20 How. St. Trials, 613) ; and if the jury erred, as they probably [452]*452did, in concluding that the facts set up amounted to an eviction, the. plaintiff should have reviewed their finding by certiorari, and. not have attempted to try the question over again by bringing an action for the rent.

Judgment reversed.'

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By the Court.

Daly, F. J.

In the summary proceedings instituted by the plaintiff to dispossess the defendant, the defendant traversed the second allegation that he was indebted to the plaintiff for two quarters’ rent, from the first of May to the first of November, 1863, that he had made default in the payment of the rent, that he had held over after making default, without the landlord’s permission, that the rent had been demanded of him; and set up in his affidavit the facts upon which he now relies as constituting the eviction. The present action [451]*451was brought to recover the quarter’s rent from the first of ¡May to the first of ¡November, 1863, so that the question at issue in this action, whether the defendant was indebted for that quarter, was at issue in the summary proceedings.

The issue created by the affidavit in that proceeding presented substantially two questions, 1. "Whether the defendant was indebted for the rent alleged in the plaintiff’s affidavit to be due, and 2. Whether it had been demanded so as to entitle the plaintiff (under the statute) to institute the proceedings; upon either of which questions, the verdict of the jury in fa-var of the defendant was conclusive and final.

It was settled by the highest Court of authority in this State, in White v. Coatsworth (2 Seld., 137), that the verdict of a jury in summary proceedings that no rent was due from the tenant to the landlord, was conclusive upon that question, and a harto any further or other proceeding on the part of the landlord for the rent.

The jury in this case may have rendered their verdict upon the ground that no rent was due, and where that appears upon tlxe inspection of the proceedings, it was with the plaintiff, and not with the defendant, to show that that question was not raised upon the evidence submitted to the jury, and that their verdict upon the evidence before them must have been upon the other ground that no demand was made for the rent (Bagot v. Williams, 3 Bar. & Cres., 235.; Seddon v. Tutop, 6 T. R., 607 ; Phillips v. Berick, 16 Johns.., 136 ; Hale v. Andrus, 6 Cow., 225 ; Snider v. Croy, 2 Johns. R., 229).

The defendant offered to show by the testimony of the jurors, that they found their verdict solely upon the ground that he had been evicted by title paramount, but the referee would not allow him to do so, holding that the verdict of the jury in the summary proceedings was not res adjudioeitco upon the question of eviction. In this he was in error, and as the plaintiff did not show that the question of the defendant’s indehtedness for the quarter’s rent was not before the jury, the referee should have found for the defendant. A matter which, has once been judicially determined between the same parties, is not to be agitated again (Duchess of Kingston's Case, 20 How. St. Trials, 613) ; and if the jury erred, as they probably [452]*452did, in concluding that the facts set up amounted to an eviction, the. plaintiff should have reviewed their finding by certiorari, and. not have attempted to try the question over again by bringing an action for the rent.

Judgment reversed.'

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Bluebook (online)

1 Daly 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yonkers-new-york-fire-insurance-v-bishop-nyctcompl-1865.

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