McCotter v. Flinn

Leventritt, J. This action was brought to recover rent for the months of June, July, August and September, 1897. I he only question litigated was the alleged surrender and acceptance of the premises on the 20th day of June, 1897. On this issue the defendant prevailed. There was introduced in evidence by the plaintiff the judgment roll in dispossess proceedings instituted in September, 1897, against the defendant, and which resulted in an order awarding to the plaintiff the possession' of the premises. It appears from the petition that these proceedings were based upon' the nonpayment of rent for the four months covered by the complaint in this action. The plaintiff contended below, as he does here, that the adjudication in the summary proceedings is conclusive upon the defendant as showing the continuance of the relationship of landlord and tenant and that he is, therefore, precluded from' invoking a surrender and acceptance. The defendant seeks to overcome the force of this contention by urging that the judgment in the summary proceedings was by default and that there was no personal service of the precept, a copy of it having been affixed upon a conspicuous part of the property. Meither reason is sound. A judgment taken by default in summary proceedings by a landlord for non-payment of rent is conclusive between the parties as to the existence and validity of the lease, the occupation by the tenant, and that rent is due, and also as to any other facts alleged in the petition or affidavit which are required to be alleged as a basis of the proceedings. Reich v. Cochran, 151 N. Y. 122; Brown v. Mayor, 66 id. 885. The defense of a surrender and the acceptance in June is, therefore, unavailing against an adjudication in September of an uninterrupted possession until that time. As to the question of service it is sufficient to say that the statute, recognizing that summary proceedings are essentially in rem, provides for a satisfactory means of constructive service (Code, § 2240, subd. 3), which is not violative of the tenant’s rights. Mot .only was he a resident, but in possession of the very premises the recovery of which was sought, and it seems reasonable and probable that affixing a copy of the precept upon a conspicuous part of the property advised the tenant of the pro [121] ceedings and afforded him an opportunity to defend; the judgment, therefore, was equally conclusive as if it had been rendered on personal service. The judgment should be reversed. Freedman, P. J., concurs.