During the pendency of a prior suit, in which the defendant sought to regain possession of the premises, this plaintiff consented to the entry of judgment in favor of the defendant. Plaintiff now sues in fraud, claiming that the defendant did not, in good faith, intend to demolish the building— a condition precedent to enable the defendant to recover possession of the premises. That would have been a good defense to the suit brought by the defendant to recover possession. Were it not a good defense then the plaintiff here has no cause of action and the complaint should be dismissed. However, despite the provision in the agreement to the effect that filing of plans is conclusive evidence of intent, I do not think that the courts would, or should, permit that provision to cover a fraud evidenced by a lack of intent to demolish. Moreover, I think that a good defense to the eviction action would have been that the plans were filed, not for the purpose of seeking approval to demolish, but for the specific purpose of terminating the plaintiff’s tenancy.
However, the judgment standing as it does precludes a suit on the grounds now asserted. (David v. Fayman, 273 App. Div. 408, affd. 298 N. Y. 669.) To permit the plaintiff to recover in fraud, as it here attempts to do, would undermine the judgment heretofore entered. That, the plaintiff may not do. If, however, the consent to the entry of judgment was given as the result of any fraud on the part of the defendant, then the plaintiff, if so advised, may take such steps as may be appropriate to vacate the judgment so entered.
While there are cases where tenants have been permitted to sue landlords, subsequent to the entry of judgment (giving the landlord possession) on the ground that the landlord did not in good faith intend to occupy the building, such cases are not in point in this situation. Those cases rest solely on the rent statutes, which expressly give the tenant the right to bring action after eviction. (See Kauffman Sons Saddlery Co. v. Miller, 298 N. Y. 38.) This suit is not brought on statute but is based on common law and is quite different.
Accordingly, the order denying defendant’s motion to dismiss the complaint should be reversed, with costs, but without *318prejudice to such action as the plaintiff may be advised to take with respect to the judgment presently outstanding.