Kosower v. Sandler

While errors were committed at the trial, as pointed out in the opinion rendered upon the appeal, these errors would appear, upon further examination, to offend no substantial right of the appellant, since the final order was necessarily rendered in favor of the tenant-respondent, in view of the defense of an estoppel by former adjudication. This defense involved no controverted facts, and the legal effect of the evidence was to conclude the case against the landlord; hence, errors in the course of the litigation of other issues could not well have affected the result.

The landlord sought to dispossess the tenant as a hold-over, the tenant asserted a new lease from one Deutschman, a lessee of the same landlord, and the issue was whether this lease covered the premises occupied by the tenant. An earlier proceeding, instituted by one Rothman, another lessee of this landlord, against this tenant, was successfully resisted by the tenant upon the same issue, to wit, the existence of a lease from the superior landlord, through Deutschman, covering, as matter of actual understanding between the parties, these same premises. Rothman could properly maintain that proceeding, if Sandler’s term had, as then alleged, expired (Gardner v. Keteltas, 3 Hill, 330; Goerl v. Damrauer, 27 Misc. Rep. 555-557), and the issue whether he had or had not a new lease was necessarily the direct question in the case.

The earlier proceeding was instituted by Rothman, with notice to Kosower, the principal landlord, who was liable over to Rothman if possession could not be acquired as against that tenant( Sandler) ; and the issue was litigated with the substantial participation of Kosower, who was ultimately concerned.

*445Under these circumstances, the law finds privity between the immediate claimant and the person, not a party, who is liable over upon the same facts and who has had notice of the litigation which thus intimately concerns him, the rule being founded upon public policy, which does not favor a second litigation of facts once determined, substantially, as to all parties in interest, although not formally parties of record. Prescott v. LeConte, 83 App. Div. 482; 178 N. Y. 585; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137.

Within this rule, the final order in favor of the tenant in Rothman’s proceeding was an adjudication operative as against this landlord (Tyree v. Magnesi, 1 Sneed [33 Tenn.] 276), and the final order appealed from has thus apparent ground of support.

Present: Scott, Bischoff and MacLean, JJ.

Final order affirmed, with costs.