#### Solomon Marculescu, Landlord-Appellant, *v.*Charles L. Fox, Tenant-Respondent.

(Supreme Court, Appellate Term,

November, 1910.)

*Former*adjudication.— What matters are concluded — Matters necessarily involved in first action.

Where the verdict of a jury in summary proceedings to recover the possession of real property may have been based on any one of several different theories and the exact theory does not appear, the final order is not a bar to a subsequent proceeding between the same parties, where the theory of the later proceeding is not necessarily in conflict with some theory on which the former verdict might stand.

Appeal by the landlord from a final order in summary proceedings dismissing his petition, entered in the Municipal .Court of the city of Few York, borough of Manhattan, fourth district.

Louis Diamant, for appellant.

Gustav Lange, Jr., for respondent.

Seabury, J.

This is a proceeding' by the petitioner to dispossess the tenant on the theory that he was a, hold over tenant after July 5, 1910. The petitioner, who will hereafter be referred to as the landlord, was the lessee of the entire premises known as 621 Second avenue and 250 -East Thirty-fourth street, under a lease which was executed and •delivered to him on March 29, 1910. The learned trial judge dismissed the present proceeding upon the ground that a final order entered in another proceeding between the same parties was *res ad judicata*upon the issue here presented.

In this we think the learned trial judge was in error. The petition in the first proceeding 'alleged and was based upon the theory that the lease under which the tenant had entered into possession expired on May 1, 1910, and that consequently after that date the tenant was a mere hold over. In *360the answer in that proceeding the tenant pleaded, *first,*a general denial; and, second, that he was in possession under a lease the term, of which would not expire until March 5, 1911.

The issues in that proceeding were tried by a jury, and a general verdict in favor of the tenant was rendered upon which a final order was entered.

Assuming that the answer in the first proceeding set forth new matter which was properly provable as a separate defense, the record in this proceeding fails to disclose that the verdict of the jury in the first proceeding was founded upon the theory set up as a separate defense in the first proceeding. It is true that the verdict of a jury upon a litigated fact is conclusive ever after. But the very fact claimed by the respondent to have been litigated is not shown by evidence to have been litigated in the first proceeding. In the first proceeding the landlord alleged that the tenant was a hold over after May 1, 1910. The answer was a general denial and for a separate defense alleged that the tenant was in possession under a lease the term of which would not expire until March 5, 1911.

The evidence adduced upon the first proceeding was not before the judge below; and it is clear, from a recitation of the pleadings in the first proceeding, that the verdict of the jury in the first proceeding may have been based upon any one of several different theories, and that the exact theory upon which the verdict of the jury was based cannot be determined without the aid of some evidence to show what the litigated facts were.

As the pleadings show that the first final order may have been rendered upon one of several theories and as there is no evidence to disclose upon which theory it was made, it is clear that the position of the respondent, that the final order is a bar to this proceeding, is untenable.

“ In such a case where a judgment may have proceeded upon either or any of two or more different and distinct facts, the party desiring to avail himself of the judgment as conclusive evidence upon some particular fact, must show ¡affirmatively that it went upon that fact, or else the question *361is open for a new contention.” Lewis v. Ocean Navigation & P. Co., 125 N. Y. 341, 348.

The respondent did not sustain the burden of showing that the first order was based npon the fact that he had possession of the premises under a lease the term of which does not expire until March, 1911. The question now presented, viz., whether the tenant was a hold over in July, 1910', is still open for contention and is not answered by the final order entered •in the' former proceeding.

The order is reversed and a new trial ordered, with costs to the appellant to abide the event.

Page and Bijur, LL, concur.

Order reversed and new trial ordered.