Steel v. Holtzer ( 1913 )

PER CURIAM.

[ 1 ] An appeal has been taken to this court from a prior order in summary proceedings awarding possession of the identical premises involved in the proceeding to the landlord herein as against the tenant herein for default in payment of a prior installment of rent. The appeal from the prior order was heard simultaneously with this appeal, and the final order has been disposed of. The validity of the second order, granting relief to the landlord which he has already obtained in the first, has accordingly become an academic question, as the affirmance or reversal of the second order would not change the status of the parties in any way. The appeal is therefore dismissed, without costs.

[2] This dismissal does not affect the right of the tenant to pursue ■ any cause of action which he may have against the landlord by reason of the fraudulent representations alleged in the counterclaim interposed by him in both proceedings. While the default at the trial taken in the first proceeding was an adjudication, conclusive in the second, that the relation of landlord and tenant existed, and that there was default in payment of rent (Reich v. Cochran, 151 N. Y. 122, 45 N. E. 367, 37 L. R. A. 805, 56 Am. St. Rep. 607), there was no investigation of the defendant’s counterclaim in either proceeding, and the dismissal by default was not an adjudication upon the merits, but equivalent merely to a nonsuit (Simon v. Bierbauer, 154 App. Div. 506, at page 508, 139 N. Y. Supp. 327).

The appeal is dismissed, without costs.