Milne v. Deen

On the twenty-ninth of October, 1873, Ann Maria Deen, the plaintiff in the court below, leased to one Mary C. C. Perry, of New York, by an instrument under seal, the house known as No. 4 East Thirtieth street, of that city, with the furniture therein, for the term of two years and ten months from the first day of November, 1873, at the rent of $450 a month, payable in advance, with a clause of re-entry in case of default in the payment of the rent, or in any of the covenants of the lease. At the same time, and upon the same paper, the defendant, William M. Wilson, of New York, in consideration of the letting of the premises to the lessee, and of the sum of one dollar paid to him by the lessor, by an instrument under seal, covenanted and agreed with her that, if default should be made at any time by the lessee in the payment of the rent, and performance of the covenants contained in the lease, he would pay the rent, or any arrears thereof, and all damages arising from the non-performance of the covenants.

No rent was paid by the lessee except for the first month, and soon after December, 1873, she ceased to occupy the house, and abandoned it. In March, 1874, the lessor gave notice to her that, as she had abandoned the house, and there was danger of the furniture being injured, possession would be taken, and the premises rented for the remainder of the term; and that the lessor would look to her for any deficiency in the rent, and for the expenses of reletting, as well as for all damages that might be sustained by reason of the loss of or injury to the furniture. In April, 1874, the lessor took possession of the premises, and in November following leased the house, without the furniture, to one Sherman, for two years and five months from December 1, 1874, at $3,600 a year, payable in half-yearly payments, in advance. For the e ficiency of the rent on the original lease, after deducting the amount collected from the new tenant, the present action was brought against the defendant as guarantor for the rent.

To the complaint setting forth the lease, the covenant of guaranty, the new lease, and the deficiency claimed to be due upon the lease, the defendant answered, denying, among other things, the allegations of abandonment of the premises by the lessee, of notice to her of the intention of the lessor to resume possession, and of the amount due; and for a separate defense alleged that in December, 1873, the plaintiff brought an action in the marine court of the city of New York against the defendant for the rent of the same premises for that month, and that the defendant recovered judgment therein against the plaintiff in the action, upon the merits thereof, and for costs.

On the trial, to meet the case established by the plaintiff, the defendant, among other things, gave in evidence the judgment book of the marine court, showing a judgment, entered on the twelfth of March, 1874, in favor of the defendant, William M. Wilson, against the plaintiff, Ann Maria Deen, for $55.91 costs; and also the judgment roll in the action containing the summons and complaint, the answer, minutes of the verdict for the defendant, and the judgment in his favor. The complaint was upon the same lease as that upon which this action is brought, and was for rent for the month beginning on the first day of December, 1873. The answer, treating the lease and the covenant upon it as one instrument, set up that 'on or about the twenty-ninth day of October, 1873, the plaintiff, by false and fraudulent statements, obtained the signature of Mary C. C. Perry and of this defendant to a paper purporting to be a lease of the premises described in the complaint; that the said Mary C. C. Perry and this defendant were both misled by the false representations; and that the said Mary C. C. Perry and this defendant were induced by their belief in the truth of such representations to sign the said paper.' It was admitted of record by counsel for the plaintiff that 'the only issue tried' in that action in the marine court 'was that of fraud in procuring the lease,' and that there was no issue as to the payment of the rent, or as to the delivery of the lease.

When the evidence was closed, and the parties had rested, the defendant moved that the complaint be dismissed, on the ground that the judgment in the marine court was a bar to the action; but the court denied the motion, and the defendant excepted. Afterwards the court directed the jury to find a verdict for the plaintiff for $12,026.89, the full amount claimed, less the rent for the month of December, 1873, which they accordingly did. To this direction an exception was taken.

[   John C. Gray and Edward C. Perkins, for plaintiff in error.

H. T. Wing and ''Jos. A. Shoudy'', for defendant in error.

[Argument of Counsel from pages 528-531 intentionally omitted]

FIELD, J.