Canfield v. Elmer E. Harris & Co.
| Decision Date | 11 February 1930 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | CANFIELD v. ELMER E. HARRIS & CO. |
Action by Jennie L. Canfield against Elmer E. Harris & Co. An order of Special Term denying defendant's motion to dismiss the first cause of action was affirmed by the Appellate Division (226 App. Div. 617, 236 N. Y. S. 423), and defendant appeals and questions are certified.
Order of Appellate Division and Special Term reversed, motion to dismiss granted, and questions certified answered.
The certified questions are:
‘1. Is the judgment of the Court of Appeals in the prior action between the plaintiff and defendant, rendered May 1, 1928, a bar to the maintenance of the first cause of action set forth in the complaint in this action?
Appeal from Supreme Court, Appellate Division, Fourth department.
Henry Adsit Bull, of Buffalo, for appellant.
H. B. Butterfield and B. H. Butterfield, both of Buffalo, for respondent.
Plaintiff's predecessor in title leased certain premises to defendant for a term of years, and defendant, entering into possession, paid rent for the full term ending October 31, 1926.
The complaint alleges that, after the expiration of the term, defendant neglected to vacate and surrender possession; that in fact it remained in possession and occupancy as a tenant holding over; that plaintiff elected to treat it as a tenant for one year subsequent to the expiration of the term prescribed in the lease; and that demand was duly made for rent for November, 1926, and following months. Judgment is demanded only for such rent as is alleged to have accrued during the time extending from February, 1927, to October 31, 1927. The answer denies that defendant held over. Then it alleges, and the reply admits, that plaintiff brought an action to recover the monthly rentals for November and December, 1926, and January, 1927; that in that action the allegations and denials of holding over were identical with those in the present action; that plaintiff recovered judgment which was reversed by the Appellate Division (222 App. Div. 326, 225 N. Y. S. 709) and a new trial ordered; that on plaintiff's appeal to the Court of Appeals with stipulation for judgment absolute in the event of affirmance this court (248 N. Y. 541, 162 N. E. 517) affirmed the order of the Appellate Division with direction for the entry of judgment absolute on the stipulation and that judgment absolute in favor of defendant was entered. The certified questions require answers whether the former judgment is a bar to the first cause of action pleaded in the present complaint and whether defendant is entitled to an order dismissing this cause of action.
[1] The Appellate Division reversed the former judgment and ordered a new trial on the ground that error had been committed in ruling, as matter of law, that defendant had become a hold-over tenant. When a party refuses to accept a new trial but, instead, gives a stipulation in this court for judgment absolute, it must abide by the result. The object of such a stipulation is to shorten procedure by which a decision can be had on a question which lies at the very foundation of the action. Moloney v. Nelson, 158 N. Y. 351, 354,53 N. E. 31. The judgment of this court was to the effect that for rent alleged to have accrued during the first three months subsequent to the expiration of the lease plaintiff had no cause of action. She would have had a perfect case if defendant had held over. There...
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