Jenner v. Shope — 137 N.Y.S. 901

Majority

p. 901

JENNER v. SHOPE.

(Supreme Court, Appellate Term, First Department.

November 8, 1912.)

Headnote

Appeal and Ebrob (§ 1194*)—Decision on Appeal—Retrial—Questions Concluded.

Where the majority opinion of the Court of Appeals declared that, in answer to the suggestion that the evidence was insufficient to show that decedent had no partner, it might be admitted that the evidence was not strong, but was sufficient to place the onus on the administratrix to show that decedent had had a partner, if such were the case, since that was a fact presumptively within her knowledge, the issue whether decedent had a partner was adjudicated, and was res judicata in a subsequent action between the same parties.

[Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. §§ 4648-4656, 4660; Dec. Dig. § 1194.*]

♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by Annie Jenner, administratrix of William J. Jenner, deceased, against Julian B. Shope. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

See, also, 140 App. Div. 936 , 126 N. Y. Supp. 1133 .

Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ.

Joseph M. Gazzam, of New York City, for appellant.

Howard Hasbrouck, of New York City, for respondent.

The only question presented for determination in this case is whether the judgment recovered in Jenner v. Shope, 205 N. Y. 66 , 98 N. E. 325 , is res judicata in this'action. Whether it is to be so considered depends upon whether it was determined in that action that Jenner & Co. consisted only of William J. Jenner.

We think that this issue was adjudicated in the former action, and that the prevailing opinion in the Court of Appeals shows that this issue was necessarily involved. It is true that Judge Haight dissented in that case, on the ground that there was no evidence that William J. Jenner, in his lifetime, ever had a partner. The opinion of the majority of the court held that the evidence on this point, while weak, was sufficient. Thus Judge Cullen said:

“In answer to the suggestion that the evidence is insufficient to show that the deceased, Jenner, had no partner, it may be admitted that the evidence of the plaintiff’s attorney, sworn as a witness. on her behalf, is not strong; but it was sufficient to place the onus upon the plaintiff of showing that he had had a partner, if such were the case, for that was a fact presumptively within her knowledge.”

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

Cases cited

Jenner v. Shope 205 N. Y. 66 N.Y. 1912-03-19 at 98 p. 901