[After stating the facts as above.]—The plaintiff’s right to recover the rent sued for in this action, namely, $525, due on December 1st, 1882, in advance, rests upon the same foundation as his right to recover the rent due October 1st, and November 1st, 1882. All this rent was due and payable before the assignment of December 14th, 1883, to him, and the alleged defense of merger was therefore barred by the judgment recovered by plaintiff for the rent of October and November. All defenses to the December rent were available against the prior two months’ rent, and when the defendants permitted a recovery by the assignee (this plaintiff) for the latter, without seeking to set up their defense when he was sxxbstitxxted as plaintiff at their request, they lost the right to urge it against lxis recovering for any rent falling due before the assignment.
But the defense is not good considered on its merits. The rent here sued for was due and payable in advance on December 1st, 1882, and a subsequent technical merger would not affect the right of recovery. Even eviction be*200fore the period for which it was payable would not be a defense (Giles v. Comstock, 4 N. Y. 270).
It is claimed that as the parties had stipulated that certain evidence might be read on this trial, defendants ought to have been permitted to put in such evidence, notwithstanding- it appeared that plaintiff had recovered judgment against them for the rent of the two prior months. This position is untenable. The judgment was conclusive evidence of the right of plaintiff to recover in this action (Krekeler v. Ritter, 62 N. Y. 373), and the evidence offered by defendants was immaterial in view of that fact.
It is claimed that there was no proof of the lessee’s default. This objection seems to be now raised for the first time in the action. It should have been raised on the trial, so that the plaintiff could have offered evidence on the point. Not having been so raised it must be deemed to have been waived.
The judgment should be affirmed, with costs.
Allen, J. concurred.
Judgment affirmed, with costs.