Per Curiam. The order and judgment granting the plaintiffs-landlords summary judgment should be reversed and the motion should be denied, nor do we think that defendant is entitled to summary judgment. There are sharp issues which should not be decided except at a plenary trial.
As to the first two causes of action, respectively, for rent and use and occupation of the premises, the effect of the judgment of the Municipal Court, Bronx, for rent obtained by the landlords against the tenant in May, 1953, and that of the judgment later obtained by the tenant against the landlords in the same court in July, 1953, can only be determined upon a full inquiry into the issues which were tried out in each case and those issues which might have been litigated. “A judgment in one action is conclusive in a later one not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first.” (Schuylkill Fuel Corp. v. Nieberg Bealty Corp., 250 N. Y. 304, 306-307.) The later determination by the Municipal Court made on July 10, 1953, held that the landlords were not entitled 1036 to dispossess the tenant for nonpayment of rent for the month of June, 1953, because the landlords failed to possess a certificate of occupancy.
Even though such certificate was not required in a class A heretofore converted multiple dwelling, this holding might be binding between the same parties as to any future litigation for rent for that month, although such issue might well have been litigated between these same parties at the first trial held in May of 1953.
Whether the tenant in the circumstances was entitled to remain in full occupancy of the premises without paying rent therefor for a period of at least four months after June, 1953, should only be determined upon a full adducement of all the facts. As to the third cause of action, landlords claim that their ownership of the furniture and fixtures was fully litigated at the first trial in the Municipal Court and decided in their favor.
In the absence of documentary or other proof as to the issues there decided, summary judgment in favor of landlords as to this cause of action should likewise have been denied.
Loading…