Tyler v. Willis

Headnote

Former Adjudication.—Another Action pending.

A judgment enrolled' is res Judicata, as to the matter in controversy, until reversed or vacated. So.held, where an appeal from' such judgment was yet pending.

Though in an action for an accounting, the defendant may he required to account for moneys received after the commencement of the action, yet the plaintiff is not bound to obtain such an accounting, but may make such items the subject of a new action. . Especially is-this- the case where the defendant procured an

order in the former action which substantially precluded the plaintiff from giving evidence of such items therein.

On the 30th of March, 1858, prior to the bringing of this present action, the plaintiff Tyler, as-receiver of Whitney, commenced two other actions in this court against the defendant Willis. In the one, he averred that Whitney, being indebted to Willis, gave the latter, as collateral security, a lease of'Ho. 21 College Place, in the city of Hew York, and a mortgage against one Joseph Dunn; that Willis had collected’, on these securities, eleven hundred and seventy-two dollars and thirty-three cents, over and above the amount of his claim against Whitney ; and demanded judgment for this sum, with interest. In-the other, the plaintiff set forth the same indebtedness and the giving of the same collaterals; alleged that Willis’s claim against Whitney had been fully, paid out of the proceeds of these collaterals, and that he,- Tyler, had demanded from Willis' a reconveyance of the lease and the mortgage, which had been refused, and asked judgment"that Willis be restrained from receiving any more moneys on the lease or the mortgage, and be decreed to assign them to Tyler. Upon the defendant’s application these two actions were consolidated by the court, on the 21st of January, 1859: The plaintiff filed an amended complaint, in which the relief demanded was as follows: “ Plaintiff demands judgment, that said defendant may be enjoined from assigning or disposing of said lease or mortgage, or collecting or receiving any payments upon either of them; and that said defendant deliver to said plaintiff said lease and mortgage, and execute an assignment of them to him; and that an account may be taken and stated of the amount which said defendant has received of collected from or out of said lease and mortgage, together with the amount which said defendant is entitled to retain out of said money so recovered or collected, and that plaintiff have judgment that defendant pay to him the balance so found.”

The consolidated action was referred to Luman Sherwood, Esq., who reported, on the 5th of February, 1859, that the plaintiff was entitled to- the lease- and mortgage, or an assignment thereof from Willis, and to the sum of $342.01, being the balance of an account stated by the referee and appended to his report. Judgment was entered oh this report on the 22d of February,

1859, and on the 18th of March, 1859, the defendant Willis appealed to the general term. The appeal was now pending.

The present action was commenced on or immediately after the 18th of March, 1859. The complaint was for moneys alleged to have been collected by Willis, on the lease and mortgage, after the bringing of the first two actions. On, the trial, the plaintiff, after proving the receipt, by Willis, of certain sums of interest and rent subsequent to the 30th of March, 1858 (the time when the first actions were instituted), offered in evidence the judgment-roll of the consolidated action, for the purpose 'of proving plaintiff’s receivership, the amount of Whitney’s debt to Willis, the giving of the lease and mortgage as collaterals, and the satisfaction of Willis’s claim out of the former proceeds of these collaterals. The admission of the judgment-roll for these purposes was objected to by the defendant, on the ground that the judgment having been, appealed from, was not binding and conclusive, and that, therefore, the matters therein decided and passed upon were not res adjudicata. The court, however? admitted the judgment-roll, and it was the only evidence offered in support of these allegations of the complaint. The plaintiff having closed his testimony, the defendant moved the court to dismiss the complaint, on the ground that it appeared by the judgment-roll (being part of the plaintiff’s own evidence) that there was another suit pending between the parties in this court, the cause of action in which suit embraced and covered the cause of action in this suit, and, therefore, afforded a complete bar to a recovery by the plaintiff in this action. The court, however, refused to dismiss the complaint, but directed the jury to find a verdict for the plaintiff, for the amount of the moneys received by Willis after the bringing of the former actions, subject to the opinion of the court at general term.