Clement v. Moore

Eor the purposes of this appeal the action may be deemed as brought by the plaintiff, as excise commissioner of the state of New York, to recover the penalty of a bond given by the defendant James Moore, with the defendant American Surety Company of New York as bondsman, on an application for a liquor tax certificate, for certain specific violations of law occurring on the 11th day of August, 1907. Other violations are alleged in the complaint; but the present controversy relates only to the violations asserted as occurring on August 11th. In the separate answer of the appellant, numbered 2, to which a demurrer is interposed, the appellant alleged that prior to the commencement of this action the plaintiff had instituted a legal proceeding against him to recover the penalty given by the statute for the same violation, and that after a trial a decision was rendered in the appellant’s favor on the merits, and an order then entered dismissing the proceeding, which order is still in force and unreversed. The interlocutory judgment appealed from holds that the prior determination is no bar to the maintenance of the present action with respect to the specific violations alleged to have occurred on August 11, 1907.

While it is true that under the law the action for a revocation of the license and one for the collection of penalties are separate and distinct, and the maintenance of the one is no bar to the maintenance of the other, the rule of adjudications remains in force, to the effect that a specific determination, judicially made and unreversed, operates as an estoppel from a second trial of the specific matter so determined; and

’ “That it is not the identity of the thing shed for, or of the cause of action, which determines the conclusiveness of a former judgment upon a subsequent action, but merely the identity of the issue involved in the two suits. If an issue presented in a subsequent suit between the same parties or their privies is shown to have been determined in a former one, the question is res judicata, although the actions are based on different grounds, or tried on different theories, or are instituted for different purposes and seek different relief. The test of identity is found in the inquiry whether the same evidence will support both actions.”

In Pray et al. v. Hegeman et al., 98 N. Y. 351 , 358, the court said:

“The general rule is- well settled that the estoppel of a former judgment extends to every material matter within the issue which was expressly litigated and determined, and also 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. Embury v. Conner, 3 N. Y. 522 , 53 Am. Dec. 325 ; Dunham v. Bower, 77 N. Y. 76 , 33 Am. Rep. 570 . It is not necessary to the conclusiveness of a former judgment that issué should have been taken upon the precise point controverted in the second action. Whatever is necessarily implied in the former decision is for the purpose of the estoppel deemed to have been actually decided. This is the principle upon which the malpractice cases, involving the right of a physician to recover for services, after a former judgment against him for negligence or want of skill in the employment for which compensation is claimed, and conversely the right of the patient, after judgment against him for services, to maintain a subsequent action for malpractice, were decided. Gates v. Preston, 41 N. Y. 113 ; Blair v. Bartlett, 75 N. Y. 150 , 31 Am. Rep. 455 ; Bellinger v. Craigue, 31 Barb. 534 . Conclusions of law or fact, which necessarily flow from a judgment, although not expressly found, are not incidental or collateral, so as to remove them from the scope of the estoppel, within the qualification of the general rule stated by the judges in their opinion in Duchess of Kingston’s Case, 11 State Trials, 261. The cases where the qualification applies are well illustrated in Campbell v. Consalus, 25 N. Y. 613 , and Woodgate v. Fleet, 44 N. Y. 1 .”

In Williams v. Barkley, 165 N. Y. 48 , 54, 58 N. E. 765 , 766, the court said:

“A former adjudication is binding upon parties and their privies, and prevents them from litigating over again such matters as were previously at issue ibetween them and were finally decided by a competent court. ■ If the record ■of the former proceeding, although made upon a motion, but after an investigation through witnesses examined and cross-examined, shows that the decision could not have been made without deciding the particular matter now in controversy, the latter must be regarded as settled by the previous action of the court, for to litigate the fact anew would impeach the first decision. Dwight v. St. John, 25 N. Y. 203 ; Demarest v. Darg, 32 N. Y. 281 ; Brown v. Mayor, etc., 66 N. Y. 385 ; Smith v. Zalinski, 94 N. Y. 519 ; Culross v. Gibbons, 130 N. Y. 447 , 29 N. E. 839 ; Wells, Res Adjudicata, § 2; Freeman on Judgments, § 325.”

See, also, Lythgoe v. Lythgoe, 75 Hun, 147 , 26 N. Y. Supp. 1063 ; Blair v. Bartlett, 75 N. Y. 150 , 152, 31 Am. Rep. 455 ; Stokes v. Foote, 172 N. Y. 327 , 344, 65 N. E. 176 ; and Everett v. Everett, 180 N. Y. 452 , 461, 73 N.

The interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs. All concur.