The New York herald., 1869-03-27
NEW YORK CITY.
InE COURTS.
SEVENTH DISTRICT CIVIL COURT.
Interesting Landlord and Tenant Case.

Before Judge Stemmler.
James b. Johnston, Landlord, Us. Jeremiah
Don0Uan, Tenant. The landlord presented an am
davlt by John Zeoman, his agent setting forth that
ne had let certain premises situated on the north
east corner OF 1924 street and Second avenue TO
jeremiah Donovan at twenty-five dollars month,
PAYABLE monthly, in advance. and that there was
due to said landlord the sum OF twenty-five dollars
Tor rent OF said premises from January B, 1858, 10
February s. lS69 that said rent was personally de-
manded OF said tenant, who made default, and now
holds over and continues in possession. On this
alldaylt q summons was issued by Judge StemH!er,
but jeremiah Donovan did not appear, and instead OF
him. Mr.. VIM. Austin appeared as the attorney ana
agent OF Cornelia Austin and flied counter afida-
Wit claiming to be the owner and as sucn, enttied
:: the % s IA Of
b Johnston. He also set forth IN this counter am
davit that Cornelia Austin, In the month Of Septem-
ber 1868, commenced proceedings before Judge
6tcmmler against John and Margaret Mann, tenants,
and Jeremiah Donovan, under tenants TO disp0ssess
that they were holding over after their term had
expired and that the said tenant and under tenant
sg n pPac Aus as 70
remove them was issued by the Judge, which war
rant was duly executed. The counsel for
COYnelia Austin now claims, as defence
mer proceedings constitute an adjudication
taking which stated that jeremiah Donovan would
admit service OF a summons and complaint in the
Supreme Court for the same cause Of action, and
applied Tor dismissal OF the proceedings on the
ground that IL appeared that The title real pro-
perty came in question.
This application was denied, the Judge holding
that these summary proceedings were regulated by
special statute and were merely possessOry In their
nature, and that he was acting in respect OF them,
not as a justice OF the peace but as q magistrate
with plenary powers conferred by said statute.
Judge Stemmler, In deciding the case, renders the
trial before me established clearly the coven-
tional relation Of landlord and tenant be-
tween Johnston ana Donavan and that the
tenant owed his landlord twenty five dollars
for one months rent in advance, which he did not
pay on demand, but continued in possession OF the
premises alter default without the permission OF the
landlord. The principal contest herein Is whether
the matter was res ddjudicate, and the counsel on
both sides submitted elaborate briefs on the ques-
tiOns involved. am not entirely satisfied, care
full examination OF the statute and authorities, that
Q special plea In bar can be interposed In summary
ing to the provision OF the statute, 'any person in
possession Of demsed premises, or claiming posses
sion, may on the return OF the summons dle an
afhdavit denying any Of the facts and the matters
thus c0ntrQYerted shall pc tried" e r. s., p 514
This question came before the Court Of Appeals
r. p. 2aS. ana Judge Wizard. in delivering y the he
that tne statute does nos contemplate pleading in
these proceedings But independent oil this ques
ton, neither the plea nor proofs offered on behalf OF
C0rnelia Austin amount to former adjudication
These IN summary proceedings are not In relation to
were instituted for holding over after the expiration
OF the term, April 1868, while the present proceed
ings are brought for the non-payment Of rent dne
the 5th Of January 1869. Again, the two summary
proceedings are not between the same parties The
record in the former proceedings does not mention
the name OF Johnston the present landlord. He
was, therefore, IN no way before the court at that
time. He was not party or "prlvy." Mr.. John
BtOn could not have defended the former proceed
ing. His rights are in direct antagonism to the
claim OF Cornelia Austin. Ills right to the posses
sion 81 the premises has. therefore. been clearly
landlord.