On September 6,1911, the Varuna Investing Company, by written instrument, leased to Elizabeth F. Dalton an apartment in the building’ 225 West Eightieth street, Manhattan, agreeing to furnish steam heat and keep the apartment warm during the winter months.
In November of 1911 Elizabeth P. Dalton sublet, with the approval of the Varuna Investing Company, the apartment furnished to Charles McC. Chapman for the term of five and one-half months, also covenanting to furnish steam heat during the winter months. In March of 1912 Chapman moved out claiming to have been evicted by the cold and failure of the steam radiators to work and refused to pay the rent to Elizabeth P. Dalton for the months of March and April. She in turn refused to pay the Varuna Investing Company and was sued, by it on her lease for the rent due and judgment was rendered by default against her.
Thereupon Elizabeth P. Dalton, through her assignee, Clutsam, brought action against Chapman for the rent due upon the sublease, in which action he set up the defense of eviction through failure to provide heat in the winter months. Upon the trial there was received in evidence, as binding upon Chapman, the default judgment recovered against Dalton, whereupon judgment was given for the plaintiff. This was reversed upon appeal to the Appellate Term upon the ground
Thereafter Elizabeth F. Dalton, through her assignee, Clutsam, brought on this action against Chapman for a retrial and offered in evidence the judgment referred to and proof that the issue- of eviction had been litigated upon that trial. The record at this point is decidedly unsatisfactory, for it is very uncertain as to whether the trial judge excluded the evidence or whether the plaintiff’s counsel withdrew it, but we are of the opinion that it was rejected on the ground that it was not evidence against the defendant Chapman, or that it was withdrawn only after such a ruling had
Under these circumstances the judgment in that case and proof that the issue litigated was the same, together with the notice to him to come in and defend, were all competent evidence in this action and should have been received as binding upon him. Prescott v. LeConte, 83 App. Div. 482, 490; Simpson v. Pilpoul, 77 Misc. Rep. 108; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137, 151, 152; Kelly v. Forty-Second St., M. & St. N. Ave. Co., 37 App. Div. 500; Robbins v. City of Chicago, 71 U. S. 657, 672, 673.
In the proper administration of justice our practice could not permit of a recovery, under the circumstances above stated, of a judgment against Elizabeth F. Dalton by her lessor upon the ground that there had been no eviction of her sublessee, and then allow her to be defeated in her suit against her sublessee upon the ground that there was such an eviction where the sublessee had been given notice of the first action and an opportunity to defend. In other words, there should not be conflicting judgments upon the same issue.
For the reasons herein expressed the judgment for
Bapper and Kelby, JJ., concur.
Judgment reversed and new trial ordered. No costs.