Engel, Heller Co. v. Henry Elias Brewing Co.

Conlan, J. The action was brought to recover the rent of certain premises leased to one Samuel Levy, and the lease thereafter assigned to the defendant with the consent of the lessor indorsed in writing as follows, namely: “ I hereby consent to the assignment of within lease to The Henry Elias Brewing Company;” in default of "payment of the rent thereof dispossess proceedings were instituted and resulted in a judgment in favor of the landlord for the possession of the premises. It is the contention of the defendant that because of certain alleged defects in these proceedings the judgment rendered therein [852] was not res adjudicaba, as to this defendant so far as to fix his liability for the unpaid rent to the time when possession was reestablished in the landlord. That issue we are obliged to say was determined in the other tribunal in favor of the landlord, and the defendant having had his day in court he became bound by the judgment rendered. We think that the objection raised to the regularity of that proceeding on the ground that two written copies of the precept were not placed upon the door of the premises, one for each of the persons against whom possession was demanded, was unfounded in fact, because the record does not show that such was the case. The affidavit of service thereof is in the following words: “ He did serve the within precept on Samuel Levy and The Henry Elias Brewing Company, the tenant herein, by affixing a true copy thereof,” etc. And we may not infer that only a single copy was, therefore, affixed. In the absence of any evidence to the contrary we are bound to presume that there was done in this particular all that was required. The judgment of the other tribunal was conclusive as to fixing the liability of the defendant. Grafton v. Brigham, 70 Hun, 131. There was no dispute as to the amount of the rent due, and for the reasons stated we think that the direction for a verdict was right and should not be interfered with. Judgment and order appealed from affirmed, with costs. Has call, J., concurs. Judgment and order affirmed, with costs.