#### Julia A. Chapman *et al.,*as Executors, &c., of George M. Chapman, Deceased, Appellants, *against*Isaac Frank *et al.,*Respondents.

(Decided June 3d, 1889.)

A judgment for defendant in an action for rent, brought by the assignee of the lessor against the lessee, is not admissible in evidence in an action brought by the lessor against the lessee for the prior rent under the same lease, where it does not appear from the judgment roll that the former action was prosecuted for the benefit of the assignor.

Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial.

*Edward B. Whitney*and *Samuel Keeler,*for appellants,

*Julius J. Frank,*for respondent.

The facts are stated in the opinion.

Bookstaver, J.

Chapman in his lifetime brought two suits in a district court, each for one quarter’s rent, under a sub-lease to the defendants. These actions were removed to this court and were consolidated. The defendants then interposed. an answer setting up an eviction by William Oppenhym, the superior landlord, for non-payment of rent by Chapman, and also a counterclaim for moneys spent in the repair of the premises at Chapman’s request. On the trial the defendants proved the loss of the record in the summary proceedings constituting the eviction set up in the answer, and made proof of such proceedings by secondary evidence. They also proved that, after the commencement of this action, Chapman assigned the rent subsequently accruing on the same sub-lease, to one Cootey, who commenced an action in the Supreme Court, Second Department, against these defendants, for that rent. The issues in that action were the *283same as in this, except as to the counterclaim, and the trial of those issues resulted in a judgment in favor of the defendants, which was afterwards on appeal affirmed at General Term. *Cootey (sub nom.*Cooley) v. *Frank*(1 N. Y. St. Rep. 773). The judgment roll in that action was offered and received in evidence on the trial of this, under plaintiffs’ objection and exception. Neither Chapman nor the plaintiffs in this action were- parties to that record.

A judgment in one action cannot be given in evidence on the trial of another, unless the parties are the same, or there is a privity of blood, representation, estate, or law between one of the parties to it and the persons against whom it is admitted *(Neeson*v. *City of*Troy, 29 Hun 173; *Booth,*v. Powers, 56 N. Y. 22). When such a judgment is admissible, it is conclusive, not only on the parties, but on those privy to it (1 Greenleaf on Evid., 14th ed., § 189; *Krekeler*v. Ritter, 62 N. Y. 372), because they have succeeded to some estate or interest which was bound in the hands of the former owner (Freeman Judgments, § 162 ; *Brennan*v. *Black,*3 Daly 478; *Zoeller*v. *Riley,*100 N. Y. 102).

But no such privity existed between Cootey, the assignee of the claim in the Supreme Court action, and Chapman, the assignor and his representatives. While an assignee of a claim may be bound by the acts of his assignor prior to the assignment, the converse of this proposition does not hold. If the parties to the record, as well as the issues in each case, are the same, of course they are bound by the former adjudication ; so, too, where an action is prosecuted in the name of another, but for the benefit and under the management of the assignor, he should be bound by the result, for in that case he is a party to the judgment in fact if not in name. Had the defendants in the Cootey action therein alleged that Chapman was the real party in interest, and that it was prosecuted for his benefit, a very strong case could have been made in support of that plea. Both actions were to recover rent alleged to be due from the same defendants under the same sub-lease; the issues were the same; the witnesses for the plaintiffs in each were the same, and both were prose*284cuted by the same attorneys. But there was no such defense set up in the pleadings, and in its absence we must take the record as it stands, and hold that Cootey was the assignee and not the representative of Chapman *(Flagler*v. Shoeffel, 40 Hun 178).

The evidence so admitted, taken in connection with the charge of the court on that subject, allowed the jury to consider what had been done by another jury in an action to which the plaintiffs were not parties, and we cannot say it did not have some weight with them.

The judgment must therefore be reversed and a new trial ordered, with costs to abide the event. .

Larremore, Ch. J., and J. F. Daly, J., concurred.

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