Levy v. Gerzog

The order made by Mr. Justice Hoyer in the prior, second, action for the January rent seems to have been made on the theory that the judgment in the first action for the December rent, affirmed by this court, was res adjudicata in the second action. As the judgment in the first action was affirmed solely on the ground that the rent had become due prior to the alleged surrender there was no basis for such a finding. Further, the order of Mr. Justice Hoyer was not an appealable one, and under the circumstances such order does not prevent a consideration of the merits in this action. (Dwight v. St. John, 25 N. Y. 203; Riggs v. Pursell, 74 id. 370.)

Judgment reversed and a new trial ordered, with thirty dollars costs to the appellants to abide the event.

All concur; present, Bijur, Delehanty and Wagner, JJ.