Barrowcliffe v. Cummins — 6 N.Y.S. 228

Majority

p. 228

Barrowcliffe v. Cummins et al.

(Supreme Court, General Term, First Department.

July 9, 1889.)

Headnote

Judgment—Effect—Res Judicata.

H. assigned to plaintiff 700 shares of corporate stock, they being a portion of certain shares then in defendants’ hands, and claimed by H. H. afterwards commenced an action against defendants for the residue, alleging the assignment cf the 700 shares to plaintiff. Pending that action, plaintiff sued defendants for possession of the 700. shares. After answering in this second action, judgment for defendants was rendered in the suit brought by H-. Thereupon defendants moved to plead that judgment in bar of plaintiff’s cause of action. Held, that defendants’ motion to file a supplemental answer, setting up the judgment in the action by H. as a bar to plaintiff’s cause of action, was properly denied, the assignment having been made before that action was commenced.

Appeal from special term, New York county.

Action by Alice M. Barrowcliffe against Henry Cummins and George D. Roberts, to recover certificates of 700 shares of capital stock of the ElectroGraphic Manufacturing Company, with the dividends declared thereon. She claimed title as assignee of Charles B. Hall, who owned and held 7,000 or 8,000 shares of this stock, and had loaned the same to defendant Cummins, and taken his negotiable receipts or “due-bills” therefor. Two of these receipts were assigned to plaintiff, representing 700 shares, for a valuable consideration. Cummins refused to account to plaintiff therefor, and plaintiff brought this action against him and Roberts, to whom he had transferred the same. Hall, after selling the 700 shares to plaintiff, brought an action against defendants to recover the remainder of the stock. Cummins, for defense, claimed, a portion of the stock by an alleged purchase thereof from Hall, and asserted a lien on the residue in suit, for advances made thereon by him to Hall, and pleaded Alice M. Barrowcliffe’s ownership of the 700 shares, and the pendency of her piasent action therefor. The referee who tried that case rendered judgment for defendants, excepting, however, the 700 shares of stock claimed by plaintiff, on the ground that Hall made no claim to recover them. Defendants moved for leave to file a supplemental answer, setting up this judgment as a bar to plaintiff’s action. From an order denying the motion defendants appeal.

Argued before Yah Bruht, P. J., and Brady and Bartlett, JJ.

John Cummins, (J. Warren Lawton, of counsel,) for appellants. Edward P. Wilder, for respondent.

The defendants sought to interpose a supplemental answer, alleging the rendition of a judgment after the commencement of this action, which determined the matters in controversy between the parties to this suit, or a portion of such matters. In opposition to the motion, the judgment roll in the action referred to in the proposed supplemental answer was produced and read; and the application was denied, for the reason that the issues involved in the other case were not the game as those involved herein, and because there was no such privity between the plaintiff in that case and the plaintiff in this as would make that judgment binding herein. This action is brought to recover the possession of 700 shares of capital stock of the ElectroGraphic Manufacturing Company, together with certain dividends paid thereon. The plaintiff derives such title as she has to this stock from one Charles B. Hall. The judgment which the defendants seek to set up by way of supplemental answer was rendered in a suit against them by Hall, and in his complaint in that suit Hall expressly alleges that before the commencement of that action he assigned and transferred to Alice M. Barrowcliffe 700 shares of the stock of the Electro-Graphic Manufacturing Company. From this allegation it is evident, therefore, that the plaintiff in the present action acquired her title to the 700 shares of stock which constitute the subject-matter

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of this litigation before the beginning of the suit wherein the judgment was rendered of which the defendants now desire to avail themselves as a bar. Under these circumstances, it is impossible to perceive any theory on which that j udgment can be deemed binding upon the present plaintiff, or can be held to affect her rights. If Hall had transferred his interest in the stock to her subsequent to the rendition of a judgment in a suit between him and the defendants, which judgment had established some rights in such stock on the part of the defendants, this plaintiff would perhaps have taken the stock subject to those rights; but she cannot be affected by any adjudication with reference to the stock in a suit instituted by her assignor after he had wholly parted with his interest therein. It being thus apparent that the judgment, even if pleaded by way of supplemental answer, could, avail nothing to the defendants, their motion was properly denied, and the^order denying it should be affirmed, with costs and disbursements. All concur.