Nemetty v. Naylor
| Decision Date | 24 November 1885 |
| Citation | 100 N.Y. 562,3 N.E. 497 |
| Parties | NEMETTY v. NAYLOR and another. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Everett P. Wheeler, for appellant, Ilka A. Nemetty.
Albert Mathews, for respondents, Joseph Naylor and others.
The question to be determined in this case is whether the record introduced on the trial by the defendant was a bar to this action, and the complaint properly dismissed on that ground. We think that the adjudication in the summary proceedings was final and conclusive, and is a bar to the plaintiff's right to recover in this action. The judgment, beyond any question, settled the facts as to the tenancy existing between the plaintiff and the defendant, the non-payment of rent due and unpaid, and the holding over after default in payment by the plaintiff; and, unless there was some invalidity in the proceedingswhich affected the authority of the court, and rendered its judgment inoperative and void, or a want of jurisdiction over the parties, it is not apparent how the proceedings can be disregarded.
The objection urged that the record was not a bar because the proceedings before the justice were not between the same parties who are parties to this action is without merit. The fact that the affidavit upon which the summary proceedings were founded, described the landlord and lessor of the premises as ‘H. Naylor,’ is enough to show that he must be regarded as representing the landlords, and the judgment must be regarded as in favor of the landlords. The firm was bound by the action of one of its members, and is entitled to all benefits arising from the judgment. The subject-matter was identical, and the parties the same in person, or by representation and privity. The ‘H. Naylor’ named was the representative of the defendants in this action. Although the lease under which the plaintiff held was in the name of as landlords, the proceedings in the name of ‘H. Naylor’ were not invalid unless objection was taken to this informality. This was not done upon the hearing before the justice, and the identity of the parties was averred in the plaintiff's complaint and by defendants in their answer, and was conceded by all parties upon the trial of this action, and the ‘lease’ and ‘record’ of the proceedings were also received in evidence without any objection whatever.
As the case stands, it cannot be maintained that the proceedings had to dispossess plaintiff were not actually between the same parties, and did not relate to the same premises and subject-matter which are in controversy in this action. Although it may be conceded that the plaintiff would not be bound to recoup the claims which are the subject of this action, if an action had been brought by the defendants to recover rent for the demised premises against the plaintiff, and a judgment for such rent would be no bar to the plaintiff's action for damages; yet it cannot be denied, we think, that the adjudication in the summary proceedings was a final determination as to the rights of the parties to the premises under the lease or contract existingbetween them. Either the plaintiff or the defendants had a right to the possession of the premises. If, under any agreement, the plaintiff had such a right, she could not be dispossessed or removed. Any agreement which authorized her to keep possession was a perfect defense to the summary proceedings for her removal; and if such an agreement existed, no judgment of removal was authorized. Such agreement not having been set up or proved, the plaintiff is not in a position to claim that she had a right to the possession of the premises. She has had her day...
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Last Chance Min Co v. Tyler Min Co
...at variance with the judgment on the pleadings.' Brown v. Mayor, etc., 66 N. Y. 385; Blair v. Bartlett, 75 N. Y. 150; Nemetty v. Naylor, 100 N. Y. 562, 3 N. E. 497; Orr v. Insurance Co., 114 Pa. St. 387, 6 Atl. The withdrawal by defendants of their answer may have prevented any judicial det......
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Whipple v. Gorsuch
...on Torts, p. 181. Both malice and want of probable cause must be proved. 32 Ark. 763. See, also, 193 U.S. 486; 4 B. & C. 247; 1 West. 321; 3 N.E. 497. In view these authorities the court erred in giving instruction one for plaintiff, in refusing the tenth for defendant, and also the elevent......
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David v. Nemerofsky., 249.
...practical construction to the rule would be to sacrifice substance to form. This, we assume, was the underlying thought in Nemetty v. Naylor, 100 N.Y. 562, 3 N.E. 497, where the judgment in a summary action for possession, brought by one member of the landlord firm, was held res judicata in......
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Reich v. Cochran
...are required to be alleged as a basis of the proceedings. Brown v. Mayor, 66 N. Y. 385;Jarvis v. Driggs, 69 N. Y. 143;Nemetty v. Naylor, 100 N. Y. 562, 3 N. E. 497. To authorize a judgment to remove a tenant holding over, the conventional relation of landlord and tenant must exist, and, in ......