Jarvis v. . Driggs , 1877 N.Y. LEXIS 810 ( 1877 )

The determination of the magistrate in the summary proceedings instituted by the plaintiffs against the defendants did not establish the amount of rent due from the defendants at the time the proceedings were taken. The affidavit alleged the existence of the lease, the occupation by the defendants of the demised premises, the amount of rent due, and a holding over by the defendants after default in the payment of rent without consent of the landlords, and that the rent had been demanded. In Brown v. The Mayor, recently decided in this court,^* which was an action brought to recover rent alleged to be due on a lease from the plaintiff's assignor to the defendants, the plaintiff put in evidence the record and determination in summary proceedings taken before a district judge in the city of New York, instituted by them against the defendants for the removal of the latter from the possession of the demised premises for non-payment of rent, in which proceeding judgment of dispossession was rendered against them by default. The plaintiff rested without further proof, and a verdict was directed in his favor for the amount of rent claimed to be due in the affidavit made in the summary proceedings, that being the rent for which the action was brought. Judgment was entered upon the verdict, which was affirmed by the General Term, and the judgment of General Term was affirmed by this court. This court decided that the question of the existence and validity of the lease between the plaintiff and defendants was conclusively established by the determination of the summary proceedings. No question was made in this court as to the effect of the determination as an adjudication of the amount of rent due, and that question was not decided. It is clear that the judgment of dispossession in such a case is not conclusive as to the amount of rent due at the time it was rendered. The magistrate has no power to award judgment for the recovery of rent. If any rent whatever is due and unpaid, and there is a holding over by the tenant without permission after demand, the landlord is entitled to a warrant of dispossession unless it is stayed as provided in the forty-fourth section of the act. The allegation in the affidavit as to the amount of rent due does not conclude the tenant. The judgment does establish that some rent is due, but it does not determine the amount.

In this case, if the question had been specifically raised that the determination in the summary proceedings did not establish the amount of rent which the plaintiffs were entitled to recover, and the court had held that it was established thereby, the ruling would have been erroneous. But this point was not raised by the exception. The question raised was whether the plaintiffs were, upon the proof made, entitled to recover anything. They were entitled at least to nominal damages, and the case was litigated on other issues. The amount of rent due to the plaintiffs, provided they were entitled to recover anything, was not the point in controversy. The other questions raised on this appeal are disposed of by our decision in Brown v. The Mayor,supra.

The judgment should be affirmed.

All concur.

Judgment affirmed.

^* 66 N.Y., 385.