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Some General Considerations as to Summary Proceedings


It frequently becomes important to know just what is adjudicated by a final order in a summary proceeding. Perhaps the most frequently asked question under this head is whether a final order in a summary dispossess proceeding for non-payment of rent acts as a conclusive adjudication of the amount of rent due, so that the issue need not be litigated in a subsequent action for such rent.

The most informative recent case upon this subject is the case of Sea Gate Hotel Company v. Nahmmacher, Judge Cropsey writing the opinion for the court. Here the defendant had been dispossessed by a warrant issued in a summary proceeding for non-payment of rent. After the dispossession, the landlord brought an action to recover the unpaid rent, and offered as proof of the amount due the record in the prior summary proceedings, claiming the adjudication in those proceedings was decisive, among other things, of the amount of rent due.

The court decided, upon the authority of numerous cases cited in its opinion, that “in an action for rent a final order in favor of the landlord in a summary proceeding based on


1 App. Term, 2d Dept., reported in 112 Misc. 100, 182 N. Y. Supp. 566.

2 Among others, Jarvis v. Driggs, 69 N. Y. 143; Stelle v. Creamer, 69 App. Div. 296, 74 N. Y. Supp. 669; Sheldon v. Testera, 21 Misc. 477, 47 N. Y. Supp. 653; Steiger v. Feldman, 94 Misc. 243, 157 N. Y. Supp. 1042; Prince v. Schlesinger, 116 App. Div. 500, 101 N. Y. Supp. 1031.

the non-payment of rent is not conclusive that is, it is not res adjudicata-as to the amount of rent due.”'

The court set forth succinctly the matters as to which such a final order is “res adjudicata,” in the following language:

"Such an order, however, is conclusive proof that some rent is due and unpaid; and it is also conclusive as to the existence and validity of the lease upon which the proceeding was based, the occupation of the tenant thereunder, and the holding over by the tenant after default in the payment of rent.”

One engaged in a litigation to recover rent, after a prior summary dispossess proceeding for non-payment, will do well to consult this case and consider both the opinion of Judge Cropsey and the copious authorities to which he refers. One of these cited authorities, it may be noted, goes

, so far as to hold that even if taken by default, the judgment in summary proceedings for non-payment of rent “is conclusive between the parties as to the existence and validity of the lease, the occupation by the tenant, and that rent is due, and also as to any other facts alleged in the petition or affidavit which are required to be alleged as a basis of the proceedings.'

Note may perhaps appropriately be made here also of a decision previously referred to, to the effect that the Municipal Court of New York City has power in a summary “non-payment ” proceeding to determine the amount of ‘ rent due.

Since the decisions to which reference has been made

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• Reich v. Cochran, 151 N. Y. 122.
• Natkins v. Wetterer, 76 App. Div. 93, supra, page 120.

• Excepting the decision in Sea Gate Hotel Co. v. Nahmmacher, supra, which was decided on appeal in May, 1920. The final order in this case, however, was made March 27, 1918,

were rendered, Chapter 132 of the Laws of 1920 has been enacted and became a law on April 1, 1920. This law amended Section 2244 of the Code of Civil Procedure, relating to the answer in a summary proceeding, by adding the following:

“If the court finds that a defence or counterclaim has been established in whole or in part, it shall, upon rendering a final order, determine the amount of rent due to the petitioner or make such other proper disposition as shall determine the rights of the parties, and may give affirmative judgment for the amount found to be due on the counterclaim."

The court appears, therefore, now vested with express authority to make a finding determining the amount of rent due, which finding is properly part of the final order, and consequently, it would seem as though such a determination ought to be conclusive in any other action or proceeding. If this be the correct interpretation of the amendment of the law effected by Chapter 132 of the Laws of 1920, the earlier decisions referred to would no longer be authority as to the proposition that a final order in a summary proceeding which determined the amount of rent due, was not binding and conclusive in that respect, i. e., as to the amount of rent due, for all purposes.


The execution of a warrant in summary proceedings requires the removal of the tenant's goods and furniture from the leased premises. It has been held that the tenant is liable for the expense of such removal, and if the landlord

• Now $ 1425 of the Civil Practice Act,

advances the cost thereof, he may recover the same from the tenant.7

The same case holds that if, in course of removal, the tenant's possessions are damaged, the landlord is not liable for such damages, unless he directly authorizes the commission of the acts causing the damage. In the language of the court:

"It is the general rule that a party is not responsible for the manner in which an officer executes a valid process duly issued, and that the officer only becomes his agent where the process is irregular, unauthorized, or void.” 8

If in executing the warrant the marshal exceeds his authority, he becomes a trespasser, and personally liable. The court states: 9


“The warrant protected them (the marshal and those employed by him) to the extent that their acts were authorized thereunder, and if they went beyond its authority they became trespassers, and doubtless are liable therefor."


Questions as to the landlord's right to recover costs and disbursements are constantly raised in litigations under the emergency laws. The subject of costs in an action for reasonable rental will be considered in a later chapter, 10 and in a general way the statements there made are applicable to costs in summary proceedings where the statutory defense of “unreasonableness ” of rent is interposed by

Ide v. Finn, 196 App. Div. 304, 187 N. Y. Supp. 202, at p. 209. 8 Id., at 187 N. Y. Supp., page 210. Cases cited. • Id., at page 211. 10 Infra, Chapter XVIII, page 256. See Chapter 434, Laws of 1921, 86,

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the tenant. Attention may be called, however, to a recent case, 11 which holds that:

“In a summary proceeding the successful party is entitled as costs to the taxable disbursements and fees he has paid or incurred.” 12

This was a summary proceeding for non-payment of rent, and the tenant pleaded tender into court. The court held that he had not, however, deposited the lawful disbursements of three dollars incurred in serving process and filing the case, and accordingly granted the landlord's motion to tax these items. 13

While perhaps not directly relevant here, a decision may at this point be noted which relates to the recovery of counsel fees and disbursements expended by a landlord in maintaining a summary dispossess proceeding against a “holdover.” The landlord was successful in the summary proceeding, and then brought suit for damages incurred by reason of the wrongful withholding of the premises. The lower court allowed him counsel fees and disbursements as part of such damages, but on appeal these items were deducted from the amount of recovery. 14

The Appellate Division in Brooklyn has held to similar effect in a case involving forcible entry and detainer of premises, refusing to permit the recovery of counsel fees or disbursements. 15

11 Springer v. Schlegel (App. Term, 1st Dept., No. 134 Mun. Ct., filed June 9, 1921), unreported.

12 Citing Cohen v. Melle, 43 Misc. 79; Lauria v. Capobianco, 39 Misc. 441.

18 See also Wigdor v. Archibald (Mun. Ct., N. Y. City, Robitzek, J.), 113 Misc. 643, 186 N. Y. Supp. 514.

16 Marbridge Building Co. v. White (App. Term, 1st Dept.), 115 Misc. 320 188 N. Y. Supp. 233, citing Livingston v. Robb, 61 Misc. 81, 113 N. Y. Supp.

16 Kantor v. Spodek, N. Y. Law Journal, March 5, 1921.

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