majority">By the court, Joseph F. Daly, J.

This action was brought to recover $233 32 for rent of premises 741 Ninth Avenue, alleged to be due January 1, 1870, pursuant to the terms of lease made by plaintiff to defendant. On the trial, the plaintiff proved certain proceedings under the Revised Statutes, part 3, chap. 8, title 10, art. 2, § 28, &c., to recover possession of the same premises for non-payment of the same rent, which proceedings were commenced by *357plaintiff against defendant, and in which judgment was rendered in plaintiff’s favor by default, and a warrant was issued under thasame statute, section 39. The service of the summons on defendant pursuant to section 33, was admitted also, that defendant did not appear on the return day (see. 34,)- but suffered judgment by default to be taken.

The question is, whether in this action at law, brought to recover the same rent specified in the affidavit in such summary proceedings, the judgment in favor of the landlord (this plaintiff) is conclusive upon the tenant (this defendant,) such judgment having been rendered by default. It is not possible under the decisions in this state, to hold that it is not. The judgment of the justice in summary proceedings, that no rent is due, is a bar to subsequent proceedings on the part of the landlord, for the rent (Yonkers & N. Y. Fire Ins. Co. agt. Bishop, 1 Daly, 451; White agt. Coatsworth, 3 Seld. 137,) and a judgment in favor of the landlord in such proceedings would be equally conclusive upon the tenant (Kelsey agt. Ward, 38 N. Y., 83.) And it is .equally well settled, that a judgment by default being pro confesso, or equivalent to judgment by consent is, as conclusive as if upon litigation as to all material issues (Maltby agt. Green, 1 Keyes, 548; Baron agt. Abeel, 3 Johns., 481; White agt. Merritt, 7 N. Y., 352; Gates agt. Preston, 41 N. Y., 43.)

It was necessary for the landlord in the summary proceedings to aver and prove before he could recover judgment:

■ 1 st. That the relation of landlord and tenant existed, and the agreement under which the defendant was in possession.

2d. Default, in the payment of rent, and demand which includes the amount of rent due on the day alleged. The amount of rent due was a necessary averment, in order to enable the justice to grant the- stay under the judgment or warrant (sec. 44.)

As the object of the summary proceedings was, to recover possession only, and the defendant was probably under the *358impression, that his default entailed no other consequences, I have been careful to examine the question in all its phases,. but am satisfied, that while the judgment of the justice remains in force, it is conclusive upon the defendant in this action. If he suffered the default under circumstances entitling him to equitable relief against the judgment thereon, his proper course is by bill in equity to set it aside.

The judgment appealed from as it stands, however, must be modified_ to the extent of $19 17, and interest from January 1st, 1870, the sum obtained for use and occupation, the ' landlord having elected to terminate the lease, and having thereby deprived himself of the right to recover for any part of the month.

Judgment for the residue ordered.

Daly, C. J.

The affidavit upon which the summary proceedings were founded, specified the amount of rent that was due in the agreement under which it became due, and the demand of it. If it had not it would have been defective, for the affidavit is in the nature of a complaint, and must distinctly set forth facts sufficient to give the officer jurisdiction (Hill agt. Stocking, 6 Hill, 317; Anderson agt. Prindle, 19 Wend., 396; Simpson agt. Rhinelander, 20 Wend., 103.) It would not have been sufficient to have stated simply, that the tenant had made default in the payment of the rent pursuant to the agreement under which he held the premises in the general words of the statute, but the affidavit must contain such facts as will enable the officer to draw the judicial conclusion, that there has been a default in the payment of the rent, pursuant to the agreement (Anderson agt. Prindle, supra,) and among these essential facts is the amount of rent due, and the demand of it, or the notice in writing requiring the payment of it. All, therefore, that the landlord would have to, aver and prove in an action for the rent, he has averred in the affidavit upon which the summary proceedings were founded, and the tenant has admitted it by *359allowing these proceedings to go by default. If such proceedings are conclusive against the landlord where the decision of the officer is, that no rent was due, as has been held in the cases to which Judge Daly has referred, they must be equally so where the officer adjudges, that the tenant, is indebted, whether the tenant traverses the statement in the affidavit of the rent due, or admits it by allowing the judgment to go by default. He may show in that proceeding, that no rent at all is due, or if he admits that some is due, but not as much as the landlord claims, he may tender that amount, and by denying that any more is due, put the landlord to the proof of it for he may deny the facts upon which the summons issued or any of them (2 Rev. Stat. p. 423, §34, 2d ed.).

All this being the' case, there is no reason why the judgment rendered in the summaf-y proceedings should not be final and conclusive upon the 'point, that he avers the amount of rent tor the non-payment of which he is adjudged to be in default, whether he appears and contests his indebteness, or allows the proceedings to go by default.

Laeremore, J.

I think, upon the evidence, judgment should be ordered for the full amount of the verdict.

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