Brawner v. Fahy

The defendant John Fahy recovered a judgment against one Charlotte Mulherin. Execution was issued on the judgment to the sheriff of Monroe county, who, on the 29th of December, 1898, levied upon the articles enumerated in the complaint, and which were in the possession of the judgment debtor. The plaintiff held a chattel mortgage upon the property, and sued the sheriff in the municipal court of the city of Rochester in an action of replevin. An answer was interposed, charging that the chattel mortgage was fraudulent and void, and a trial was had on the merits. The complaint alleged the value of each specific article of the property taken, and also its aggregate value, which was put in issue by a general denial. No proof of value was given on the trial, and the judgment entered was not in the alternative form provided in section 1730 of the Code of Civil Procedure, but simply awarded the possession of the property to the plaintiff. The defendant appealed for this defect to the county court from the-municipal court, but the.judgment was affirmed. In the meantime the property had been retaken by the sheriff, and sold, pursuant to the execution held by him. After an execution to obtain the property, which had been awarded to the plaintiff, had been issued and returned unsatisfied, this action was commenced to recover the value of such property, and a recovery was had, and the value was assessed at $600, but upon a motion for a new trial it was reduced to $405.20, which was the value alleged in the complaint in the first action. The defendants are the indemnitors of the original defendant, who was the sheriff, and were substituted by order of the court as defendants in his stead. The answers as well as the complaint set out the former action, and the defendants plead it as an adjudication in bar of the present action.

The sole question is whether, the value of the property having been within the compass of the preceding action, the plaintiff is barred from maintaining the present action by reason of the prior judgment. It is well settled that an adjudication is conclusive against the maintenance of-the same claim or demand in another action, not only as to what was litigated in the former action, but also as to what was comprehended within its purview, even though not considered or passed upon. Cromwell v. Sac Co., 94 U. S. 351 , 24 L. Ed. 195 ; Felix v. Devlin, 50 App. Div. 331 , 64 N. Y. Supp. 214 ; Boyd v. Boyd, 53 App. Div. 152 -160, 65 N. Y. Supp. 859 ; Bracken v. Trust Co., 36 App. Div. 67 , 55 N. Y. Supp. 506 , affirmed 167 N. Y. 510 , 60 N. E. 772 ; Reich v. Cochran, 151 N. Y. 129 , 45 N. E. 367 , 37 L. R. A. 805 . The Code of Civil Procedure, in an action to recover a chattel, requires that

The judgment should be reversed, and the complaint dismissed, with costs to the appellants. So ordered. All concur.