p. 1018(Supreme Court, Appellate Term.Headnote
Res Judicata—Judgment op Dismissal.A memorandum of judgment, “Tried; motion to dismiss * * * granted,”—does not- show a dismissal on the merits, so as to bar another suit for the same cause of action, under Code Civ. Proc. § 1209, providing that judgment of dismissal after trial shall bar a new suit for the same cause of action only where it expressly appears that the dismissal was on the merits.
Appeal from municipal court, borough of the Bronx, Second district.
Action by Charles H. Nicoll against William H. Karrick. Judgment for plaintiff, and defendant appeals.
Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.John T. Easton, for appellant.
William 0. Timm, for respondent.
The plaintiff based this action upon two several agreements or orders,—one for the making of a photo-engraving of the defendant for use in a publication, at the agreed price of $100; and the other for a copy of that publication, at the agreed price of $25. The signing of the orders was admitted by the defendant, who, however, contended that the plaintiff had not kept his part of the "undertaking, and had made false representations respecting the same; and also, for a separate and distinct defense, that a former action was brought against him to recover upon the same causes of action set forth in the complaint herein, and that upon a trial thereof judgment was rendered in his favor and against the plaintiff, and that by reason of such adjudication the plaintiff was estopped from maintaining this action. The memorandum of the decision or judgment
p. 1019in the action pleaded as an estoppel was as follows: “Tried; motion to dismiss as to $100 granted, and as to $25 judgment for the defendant.” From this it appeared, and the learned justice rightly so held, that there had been an adjudication which was conclusive as to the second cause of action, for the book; but as to the first cause of action, that for the engraving, the former trial had resulted only in a nonsuit, and the plaintiff was at liberty again to present his claim to the court. Code Civ. Proc. § 1209;
Wheeler v. Ruckman, 51 N. Y. 391 . The evidence adduced upon the first trial is not presented, but it would appear to have been wanting in certain material respects, especially as to the making and use of the engraving. After hearing the evidence upon both sides, which was in a measure contradictory, the learned justice, upon evidence fully warranting such a determination, found in favor of the plaintiff, and against the defendant, who, as was remarked, in effect, was so careless in his statements under oath as to discredit the significance of his testimony. The judgment should be affirmed, with costs.
Judgment affirmed, with costs. All concur.