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and 140 New York State Reporter

of rent, three questions are involved, and are necessarily and finally determined in the landlord's favor, if he succeeds. These are, first, that the relation of landlord and tenant exists, or, in other words, that the tenant holds under a valid lease; second, that the tenant has entered into possession; and, third, that the tenant has defaulted in the payment of rent. And in such a proceeding a judgment by default is as conclusive as one rendered after defense and litigation. Reich v. Cochran, 151 N. Y. 122, 45 N. E. 367, 37 L. R. A. 805, 56 Am. St. Rep. 607. The determination below seems to have proceeded upon the theory that this action challenges the existence of a lease between the plaintiff and defendant, and therefore seeks to relitigate one of the questions finally decided in the summary proceeding in the Municipal Court. We do not so construe the complaint. The plaintiff does not deny that she made a lease with defendant; on the contrary, she asserts it. She does not ask that that lease be declared to have been void ab initio, but alleges that she was induced to make it by fraud, and for that fraud she seeks damages. It is true that she alleges an attempted rescission on her part, which failed because of the defendant's refusal to accede to it. She is not, however, asking a judgment of rescission, one which the City Court had no jurisdiction to render, and, even if she were suing in equity for a rescission, it is by no means clear that the final order in the summary proceeding would be an effective bar. Becker v. Church, 42 Hun, 258, affirmed 115 N. Y. 562, 22 N. E. 748. A person who claims that he has been induced to enter into a contract by fraud is not confined to a single remedy. If sued for the consideration or a part of it, he may defend by pleading the fraud that was practiced upon him, or he may sue in equity for a rescission, or he may affirm the contract, and sue at law for the damages which he has suffered by reason of this fraud. It is the latter course which the plaintiff has chosen. We have not overlooked the provisions of section 2244 of the Code of Civil Procedure, which permits a tenant to set up in a dispossession proceeding "any new matter constituting a legal or equitable defense or counterclaim," to be established in like manner as though the claim for rent in such "proceeding was the subject of an action." This provision was evidently inserted for the benefit of the tenant, who before the adoption of this provision was confined to the simple issue as to whether or not he owed any rent. It is permissive, and not mandatory. Apart from all other considerations, a sufficient reason for not setting up as a counterclaim in the Municipal Court the claim asserted in this action is that this plaintiff could have recovered there no more than $500. Laws 1902, pp. 1489, 1540, c. 580, § 1, subd. 13, and section 157. We think it clear, therefore, that the question whether or not the plaintiff was induced to enter into the lease by fraud was not involved, actually or by necessary implication, in the proceedings in the Municipal Court, and that the adjudication in that court went no further than to determine that the parties had made a lease, leaving untouched the question whether or not the plaintiff was induced to make that lease by fraud.

The plaintiff's present claim for damages could not, properly speaking, have been set up as a defense to the summary proceeding, nor could it have been set up as a defense to an action for rent, which is

the test provided by section 2244 of the Code. If pleaded at all, it must have been by way of counterclaim. The plaintiff was not bound to set up the counterclaim. Brown v. Gallaudet, 80 N. Y. 413. The cases cited by respondent (Gates v. Preston, 41 N. Y. 113; Blair v. Bartlett, 75 N. Y. 150, 31 Am. Rep. 455) wherein judgments in favor of physicians for their services have been held to be a bar to actions for damages for malpractice in the performance of the same services have rested upon the principle that the malpractice constituted no performance, and that the judgment for the fees necessarily implied a finding of performance (Schwinger v. Raymond, 83 N. Y. 192-197, 38 Am. Rep. 415). These cases are in precise accord with Reich v. Cochran, supra, but do not affect the present case, which involves no question as to the actual making of the lease. Woods v. Garcewich, 67 Âpp. Div. 53, 73 N. Y. Supp. 472, is not in conflict with the views herein expressed. In that case the validity of the lease was not attacked. The lease was originally made by one Sickle, the owner of the premises, to Robert Garcewich, by whom it was assigned to Morris Garcewich, the defendant's husband. Morris Garcewich became a bankrupt, and his receiver in bankruptcy sold the lease to the plaintiff Woods, who went into possession of the leased premises. Subsequently the defendant Henrietta Garcewich demanded possession, claiming that her husband had assigned the lease to her before his bankruptcy. There thus arose a controversy, not as to the validity of the lease, but as to the title to it, and the consequent right of possession. In the summary proceedings in the Municipal Court between plaintiff and defendant, both claiming ownership of the lease by assignment, the validity of that which appeared on its face to be prior in point of time was necessarily and directly involved, and was raised. by the pleadings, and the opinion of the court goes no further than to hold that the judgment of the Municipal Court was conclusive upon that point. We are therefore of the opinion that the final order in the summary proceedings constituted no bar to the prosecution of the present action for damages. Prince v. Jacobs, 80 App. Div. 243, 80 N. Y. Supp. 304.

The determination of the Appellate Term and the judgment of the, City Court must be reversed, and a new trial granted, with costs to the appellant to abide the event.

INGRAHAM and CLARKE, JJ., concur.

PATTERSON, P. J. (dissenting). I am unable to concur in the views expressed in the majority opinion of the court on the appeal in this action. The allegations of the fourth paragraph of the complaint are therein treated as surplusage. They have virtually been eliminated from the pleading, and the action has been left to stand simply as one to recover damages for deceit. If that may be done, then the conclusion reached is justified; for it is an ancient maxim in pleading that, "Surplusagium non nocet," but that maxim has no place in the construction of a pleading which from its whole framework shows that the pleader intended the disregarded allegations to be material and essential parts of the cause of action. It is well settled that a person

106 N.Y.S.-46

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situated as this plaintiff was has one of three remedies that may be resorted to, and the adoption of one excludes the others. She either could have rescinded the contract by restoring or tendering the lease, and then have brought an action, or might have kept what was received and sued to recover damages for the fraud, or commenced an action in equity to rescind and for equitable relief, offering in the complaint to restore what was received. These actions are all fundamentally different. Gould v. Cayuga Nat. Bank, 86 N. Y. 84. The general rule relating to such remedies is stated in Vail v. Reynolds, 118 N. Y. 297, 23 N. E. 301. It seems to me that a simple perusal of the complaint in this case evinces the deliberate purpose of the pleader to sue as upon a rescinded transaction; the motive of that rescission being the fraud of the defendant in inducing the plaintiff to make the contract for the lease. In that aspect the fourth paragraph of the complaint is not only germane to, but is an essential part of, the cause of action. It cannot be ignored by the simple suggestion that without it there are sufficient averments in the complaint to maintain an action for deceit. One of three inconsistent remedies has been deliberately selected, and the complaint contains every allegation which the law requires to be made to entitle a person to recover as upon a rescinded contract. Here by the complaint it is alleged, in substance, that the plaintiff was willing, and offered before the action was brought, to restore what she had received under the contract with the defendant, and that allegation is made the very basis of her action. If I am right in this construction of the pleading, the judgment should be affirmed, for the final order in the summary proceeding was an adjudication that the lease was binding upon the plaintiff, and hence she could not maintain this action. Fraud might have been set up as a defense to the summary proceedings, under the provisions of section 2244 of the Code of Civil Procedure, precisely in the same way as new matter constituting a legal or equitable defense or counterclaim in an action. for rent. In Woods v. Garcewich, 67 App. Div. 53, 73 N. Y. Supp. 472, it was held by this court that in summary proceedings in a Municipal Court in the city of New York the assignment of a lease might be attacked on the ground of fraud and the decision of that court would be a bar to an action to set aside the assignment. What was decided in that case is controlling in this; the only difference being that in the case cited the fraud was affirmatively set up as a matter of defense, while here the summary proceeding passed against the plaintiff by default. But in Reich v. Cochran, 151 N. Y. 122, 45 N. E. 367, 37 L. R. A. 805, 56 Am. St. Rep. 607, it was stated that a judgment taken by default in summary proceedings by a landlord for nonpayment of rent is conclusive between the parties as to the existence and validity of the lease, the occupation of 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 proceeding, citing Brown v. Mayor, 66 N. Y. 385, Jarvis v. Driggs, 69 N. Y. 143, and Nemetty v. Naylor, 100 N. Y. 562, 3 N. E. 497, thus applying to summary proceedings in ejectment the rule stated in Pray v. Hegeman, 98 N. Y. 351, that the estoppel of a judgment extends to every material matter within

the issues which was expressly litigated and determined, and also as to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. The case of Prince v. Jacobs, 80 App. Div. 244, 80 N. Y. Supp. 304, does not seem to me to be a controlling authority in this case. I do not gather from the report of that case that the question was raised as to the summary proceedings constituting either a bar or an estoppel to the plaintiffs' action, which was purely one for damages at law, they retaining what they had received.

I think the judgment should be affirmed.

LAMBERT, J., concurs.

CARRON v. STANDARD REFRIGERATOR CO.

(Supreme Court, Appellate Division, Third Department. November 13, 1907.) 1. MASTER AND SERVANT--MASTER'S LIABILITY FOR INJURIES TO SERVANTWARNING SERVANT-EXPERIENCED EMPLOYÉ.

The rule that a master must instruct his servant concerning the dangers of his work has no application where the servant is fully familiar with the details of the work and the operation of the machine and the dangers connected therewith; and, where plaintiff had been engaged for two years in sawing boards for defendant, and was accustomed to run them through the saws three and four deep, he was surely familiar with the operation of the saws and the details of the work, and his two years' experience was equivalent to instructions as to any additional danger in running through a saw more than one board at a time.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 284.]

2. SAME-ACTIONS-EVIDENCE-NEGLIGENCE OF MASTER.

Where a sawyer in defendant's employ sustained an injury through the twisting or jumping of the saw and boards with which he was working, such twisting or jumping is not sufficient to charge defendant with negligence, in the absence of proof as to what caused the twisting or jumping.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, $$ 954, 955.]

3. EVIDENCE-OPINION EVIDENCE-SUBJECTS OF EXPERT TESTIMONY.

In an action by a sawyer to recover for an injury sustained while in defendant's employ in running boards through a saw three deep, it was error to permit plaintiff to ask an expert witness whether there was greater danger in running three boards through a saw than one, to which the expert answered, "There is a great deal more danger," since the characterization thereof, as being more dangerous, was one of the precise points in issue, and was a question, not for the witness, but for the jury. [Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2248-2254, 2309.]

Appeal from Trial Term, Albany County.

Action for personal injuries by Peter Carron against the Standard Refrigerator Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed, and new trial granted.

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Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

Edward W. Douglas, for appellant.
John Scanlon, for respondent.

COCHRANE, J. This is an action for negligence. Plaintiff was injured while operating a circular ripsaw in the service of defendant. The saw revolved on an axis, and its blade protruded through an aperture in a table and about an inch and a half above the surface thereof. The operator standing by this table pushed the boards which were being sawed over the surface of the table and against the saw.

Plaintiff testified, in substance, that at the time of the accident the defendant's superintendent directed him to saw simultaneously three boards by placing them on top of each other; that the saw was dull and pushed hard, and the table loose, which circumstances he communicated to the superintendent, who told him to proceed with the work, and that he (the superintendent) would come around and fix the saw and table; that plaintiff proceeded to carry out the superintendent's directions and worked about 40 minutes, the latter in the meantime not having sharpened the saw or adjusted the table, when, as the plaintiff was sawing three boards as directed, the saw twisted or bent, throwing the boards away and causing plaintiff's hand to come in contact with the saw, thereby producing the injury. There was also evidence to the effect that a board in the process of being sawed sometimes binds the blade of the saw which revolves toward the operator, with the consequent tendency that the board will be thrown toward the operator or thrown upward and caused to "jump," which was what happened to plaintiff at the time of the accident according to his testimony; and that such tendency of the boards to bind and to be thrown upward is increased when three boards are sawed simultaneously, and that the operator is less able to see the effect on the saw blade of the lower boards and has greater difficulty in controlling their action. The defendant contended that it had provided instrumentalities for the sharpening of the saw, and that it had been plaintiff's custom and that it was his duty to sharpen the saw from time to time; that its superintendent did not direct him on the occasion in question to saw three boards simultaneously, and that it had been plaintiff's frequent and uniform custom during the two years in which he had been in defendant's service to saw boards in that way; that the table was not loose or out of order; and that the work in question was not more dangerous to plaintiff because of the method of its performance.

In charging the jury the learned trial justice said:

"It is the duty of a master upon setting his servant to work at an employment which is dangerous, the dangers of which are not known to the employé, to the servant, and are known to the master, to give him some reasonable notice or warning of these dangers. Now, the plaintiff claims that he was told to run through these three boards; that it was extradangerous, and that he was not told of it. The defendant says it was not extradangerous to run three boards, and also says that he was not told to run three boards. If you find that this man was put to work running these three boards through or over this saw that was dull and wabbly and uncertain in its movements, and that he was injured as a result of these very dangers which were not

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