B. M. Bakery Corp. v. Schwartz

Judgment and order reversed upon the law, with costs to appellants; judgment directed for defendants dismissing the complaint on the merits and for damages, if any, under their counterclaim, with costs, and the case remitted to the Trial Term to assess such damages. As plaintiff failed to repair the premises after the fires, pursuant to the fourth clause of the lease, it is not entitled to recover any rent. The judgment in the prior action brought by defendants here against this plaintiff to restrain the demolition of the building and their eviction from the premises is res adjudicata upon the rights of the parties under the lease, and such judgment and the temporary injunction order in that action did not prevent this plaintiff from repairing the building, pursuant to the. lease, but prevented only its demolition and interference with defendants’ quiet possession under the lease,. Lazansky, P. J., Young, Kapper, Seeger and Seudder, JJ., concur.