Opinion
December, 1900.
George Burnham, Jr. (Sewell T. Tyng, of counsel), for appellant.
William Sulzer, for respondent.
The record in the dispossession proceedings was conclusive against the defendant Cordero as regards his tenancy and occupancy of the premises, and the court erred in admitting testimony tending to prove nonoccupancy. In an action to recover rent, proof of the summary proceedings dispossessing the defendant from the premises in question for nonpayment of the rent sued for is conclusive against the defendant as to his tenancy and occupation of such premises. Grafton v. Brigham, 70 Hun, 131; McCotter v. Flinn, 30 Misc. 119; Reich v. Cochran, 151 N.Y. 122. This is so even though the order in the summary proceedings is by default (Brown v. Mayor, 66 N.Y. 385); and it is immaterial whether the order by default is rendered upon personal or substituted service of the precept. McCotter v. Flinn, 30 Misc. 119. The only question open is as to the amount of rent due. Jarvis v. Driggs, 69 N.Y. 147.
Judgment and order appealed from reversed and a new trial ordered, with costs to the appellant to abide event.
Present: McCARTHY, O'DWYER and SCHUCHMAN, JJ.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.