Nemetty v. . Naylor

Miller, J. The question to be determined in this case is whether the record introduced on the trial by the defendant was a bar to this action ahdt the complaint properly dismissed on that ground. We think that the adjudication in the summary proceedings was final and conclusive and is a bar to the plaintiff’s right to recover in this action. The judgment beyond any question settled the facts as to the tenancy existing between the plaintiff and the defendants; the non-payment of rent due and unpaid and the holding over after default in payment by the plaintiff, and, unless there was some invalidity in the proceed *567 ings which affected the authority of the court and rendered its judgment inoperative and void, or a want of jurisdiction over the parties, it is not apparent how the proceedings can be disregarded. The objection urged that the record was not a bar because the proceedings before the justice were not between the same parties who are parties to this action is without merit. The fact that the affidavit upon which the summary proceedings were founded described the landlord and lessor of the premises as H. Saylor is enough to show that he must be regarded as representing the landlords, and the judgment must be regarded as in favor o.f the landlords. The firm was bound by the action of one of its members, and is entitled to all benefits arising from the judgment. The subject-matter was identical and the parties the same in person, or by representation and privity. The “ H. Saylor” named was the representative of the defendants in this action. Although the lease, under which the plaintiff held, was in the name of “ J. Saylor & Co.” as landlords, the proceedings in the name of “H. Saylor” were not invalid unless objection was taken to this informality. This was not done upon the hearing before the justice and the identity of the parties was averred in the plaintiff’s complaint and by defendants in their answer, and was conceded by all parties upon the trial of this action, and the “ lease” and “ record” of the proceedings were also received in evidence without any objection whatever. As the case stands, it cannot be maintained that the proceedings had to dispossess plaintiff were not actually between the same parties, and did not relate to the same premises and subject-matter which are in controversy in this action. Although it may be conceded that the plaintiff would not be bound to recoup the claims which are the subject of this action, if an action had been brought by the defendants to recover rent for the demised premises against the plaintiff, and a judgment for such rent would be no bar to the plaintiff’s action for damages, yet it cannot be denied, we think, that the adjudication in the summary proceedings was a final determination as to the rights of the parties to the premises under the lease pr contract ex *568 isting between them. Either the plaintiff or the defendants had a right to the possession of the premises. If, under any agreement, the plaintiff had such a right she could not be dispossessed or removed. Any agreement which authorized her to keep possession was a perfect defense to the summary proceedings for her removal, and if such an agreement existed no judgment of removal was authorized. Such agreement not having been set up or proved, the plaintiff is not in a position to claim she had a right to the possession of the premises. She has had her day in court with full opportunity to be heard and to assert and protect her rights, and, having failed to do so at the proper time, the record of the proceedings, upon which she might have done so, is a bar to her right to recover in this action. The judgment is conclusive that no other tenancy existed than that which was claimed in the proceedings had, and also as to the rent due and unpaid and the holding over after default in its payment. The plaintiff’s claim in this action rests entirely upon a verbal agreement which was inconsistent with the written lease under which the proceedings were had to remove her, which verbal agreement included a suspension of the payment of rent until certain alterations and repairs were completed. She proved that these were not done when she was removed under the proceedings had against her. The judgment established the lease set forth in the affidavit which upheld the landlord’s right to the possession of the premises, and which was in entire conflict with any other or different agreement. The written and verbal contracts were antagonistic to each other and could uot stand together, and as the claim of the plaintiff results from the alleged paroi contract, the existence of which is in direct conflict with the judgment between the same parties, it cannot be enforced in this action. The objection urged, that the justice did not obtain jurisdiction in the summary proceedings for the reason that the original summons was unlike the copy, being returnable on the tenth of December, 1876, instead of the ninth, did not *569 render the proceedings before-the justice nugatory and of no effect. The error was a clerical one and did not affect the substantial rights of the parties. It could be waived by consent or amendment. At most it was an irregularity, and the voluntary appearance of the party in accordance with the copy summons served, without making any objection to the error in the original process, was clearly a waiver of the defect. The mistake appears, from the return of the justice, to have been caused by an inadvertence of his clerk, and his attention was not called to it on the hearing. On the contrary, the parties both appeared upon the case being called, the tenant in person and by her attorney, the latter presenting the copy summons served, which was returnable on the ninth, and stated that the tenant did not propose to offer any opposition to the proceedings but asked for a stay of the warrant for a few days, whereupon the usual judgment was then entered by default. Under the circumstances, the alleged irregularity cannot be reviewed in a collateral proceeding, and cannot be regarded as affecting the validity thereof. ■ It cannot be said, we think, that the plaintiff was not bound by the statements of the justice upon the return to the certiorari. She was a party to that proceeding, and the return is controlling so far as the rights of the parties affected are concerned. Although it appears from the return that the tenth day of December, 1876, was Sunday, it also shows that in point of fact the copy summons served was returnable on the ninth, and that the parties then appeared and consented to proceed, thus waiving the objection to the error now alleged, and it by no means follows that no jurisdiction was acquired by the justice. The assent of the parties that the summons was returnable on the ninth of itself conferred jurisdiction. The statement in the record of the justice that the tenant appeared not is not conclusive, and must be considered in connection with the return to the certiorari, wherein it is stated, among other things, that the justice rendered judgment as by default, although the parties really appeared and consented to the same. *570 The appellant cites the case of Jarvis v. Driggs (69 N. Y. 143) to sustain the position that the judgment is not conclusive as to the amount of rent due, and claims, therefore, that it cannot be conclusive as to the amount of damages in an action for a breach of an independent and subsequent agreement to make alterations. The answer to this position is that the judgment established a tenancy which had expired, and the plaintiff had no right whatever to the possession of the premises, and no claim for damages under any agreement in regard thereto. There was no error committed on the trial, and the judgment should be' affirmed. All concur. Judgment affirmed.