Devine v. Kilcommons

Seabury, J. The complaint alleges that the plaintiff is the owner of the premises Kos. 353 and 355 West Sixty-fourth street, Kew York city, and that in the month of August, 1909, the defendant leased from the plaintiff the said premises under a verbal lease for a term of six months beginning with the month of September, 1909, at a monthly rental of $125, payable in advance. In the present action the plaintiff sues to recover the rent alleged to be due for the months of Kovember and December, 1909. Upon the trial it was conceded that the plaintiff was the owner of the premises. The plaintiff offered in evidence a judgment roll of the Municipal Court in an action between the parties tried before Justice Speigelberg. The stenographer’s minutes of that trial were offered in evidence and established beyond all question that in that action the court decided that the defendant had leased the premises for six months from September, 1909, at a monthly rental of $125. The contention of the appellant that it was error to admit the stenographer’s minutes of the previous trial in evidence is not correct. It was not clear from the judgment roll, considered by itself, what issues were determined in the prior action. Under these circumstances it was competent to show the scope of the prior adjudication of the Municipal Court by resort to the minutes of the trial. Stecher v. Independent Order, 45 Mise. Kep. 340. The minutes of the previous trial established that the only issue upon that trial was whether there was a lease between these parties for six months from September 1, 1909, at the monthly rental of $125. That issue having been once resolved in favor of the plaintiff, the determination is res adjudicada between these parties. It follows that the judgment should be affirmed, with costs. Gavegan, J., concurs.