#### Agnes K. M. Mulligan, Appellant, *v.*John J. Cox, Respondent.

(Supreme Court, Appellate Term,

June, 1898.)

A tenant may show that his landlord’s title has been defeated — Former adjudication.

A tenant cannot dispute the title of his landlord, but may show that that title has been defeated by some- event which happened after the making of the lease.

Where, however, a prior final order has been made inj summary proceedings which, in effect, overruled the tenant’s contention, then made, that his landlord’s title, under a life tenant who had died, had passed to certain reversioners, the order is an adjudication that the relation of landlord and tenant still continues, and the tenant who, by payment, has stayed the issue of a warrant under the order, is precluded from renewing his contention, in a somewhat different form, in a subsequent proceeding taken by the landlord to dispossess him for nonpayment of the rent.

Appeal from a judgment rendered in the District Court of the city of New York for the tenth judicial district, on the 31st day of December, 1897, in favor of the respondent, dismissing the proceedings.

Charles W. Coleman, for appellant.

Maurice Meyer, for respondent.

*Per Curiam.*

This proceeding was instituted to recover the possession of the demised premises by reason of the nonpayment of rent claimed to be due on the 1st day of December, 1897, under a lease which is set forth in the petition. The tenant interposed an answer in which he denied the allegations of the petition, and set up a further defense tending to show that one Charles Barson, Sr., died on the 2d day of October, 1897, and that upon his death all the right, title and interest of the landlord above-named thereupon came to an end, and that since the decease of said Barson the said landlord ceased to have any right, title or interest in the property or the possession of the same, and that he, the said tenant, was then and had been since the decease of said Barson in possession of the premises *696under the consent, permission and license of certain persons whom he mentions, and who, he declares, became entitled to the possession, of the property as reversioners upon the death of Barson. The facts leading up to this conclusion are set forth in the answer. Without here stating them at length, it is sufficient to say that the interest of the landlord was itself a leasehold one, derived from Barson, who was. a life-tenant of the property, and consequently ceased upon his death, when the possessory right to the property free from demise passed to those who were entitled to the fee.

Although a tenant may not dispute the title of his landlord, this doctrine does not prevent him from showing that such title has been défeated by some event happening after the maldng of the lease. This is well settled (Jackson v. Rowland, 6 Wend. 666, 670; Despard v. Walbridge, 15 N. Y. 377; Hoag v. Hoag, 35 id. 469; Hetzel v. Barber, 69 id. 1), and is not the subject of dispute here, the contention of the landlord being that the tenant is precluded from availing himself of the defense by reason of a prior final order recovered , against him in similar proceedings brought upon the same lease' at a time when such defense could have been interposed. It appeals from the proofs that on the 14th day of October, 1897, summary proceedings were instituted by the landlord against the tenant for the recovery of the premises in question on the ground that the latter was holding over after a default in the payment of one month’s rent which became due under the lease on October 1st. The petition was in the usual form. An answer was interposed by the tenant, in which, among other tilings, he set up that the lease had terminated by reason of Barson’s death, predicating his claim, however, upon a somewhat different theory from that presented by the defense in the proceeding now before us. A trial was had, which on the 21st day of October, 1897, resulted in a final order in favor of the landlord, awarding to him the delivery of the premises. The issuing of a warrant, however, was stayed by the payment of the rent, and the order in question, while it still stood, did not have the effect of annulling the lease. § 2253, Code of Civil'Brocedure.

It has been held in the case of Reich v. Cochran, 151 N. Y. 122, that the determination in such a proceeding comprehends and involves *“*every question relating to the validity of the lease and the relation between the parties, and the estoppel of the judgment extends to them even though they were not litigated or considered in thatproceeding.” The effect, then, of the final order of October 21, • 1897, was to establish a subsisting relation of landlord and tenant *697between those parties, notwithstanding the existence of facts tending to negative such a conclusion, and the tenant cannot now be permitted to assume a position which is inconsistent with that adjudication. He might have pleaded such facts in that proceeding, but did not; it is too late to do so now where the effect would be to contradict what has been finally adjudicated.

The justice below, in dismissing this proceeding, rested his decision on the ground that the tenant could not have raised the defense in question in the former proceeding, because the rent for the nonpayment of which it was brought was actually due under the lease, and he quotes in support of this view the case of Gugel v. Isaacs, 21 App. Div. 503. That case, however, in 'no way supports his contention. There the suit was not to recover the property, but for rent which was payable in advance, and all the court held was that a subsequent eviction before the expiration of the quarter for which the rent was payable was no defense. It does not follow that because rent is due the landlord necessarily has a right to recover possession for its nonpayment. For if after the rent becomes due his reversionary interest ceases, he cannot recover the premises, although he may recover the rent. The facts of the case last cited afford an apt illustration of this proposition.

The adjudication in the former proceedings, then, conclusively established the continuance of the relation of landlord and tenant between the parties, and as no change of conditions since' it was rendered is shown, it follows that the landlord was entitled to a final order in. his favor, and it was, therefore, error to dismiss the proceedings.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. ¡

Present: Beekmatt, P. J., Gildeksleeve and Giegebich, JJ.

Judgment reversed and new trial ordered, with' costs to appellant to abide event.