Barrowcliffe v. Cummins — 25 N.Y. St. Rep. 561

Majority

p. 561

Alice M. Barrowcliffe, Resp’t, v. Henry Cummins et al., App’lts.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Pleading—Judgment—When cannot be pleaded in bad.

In an action to recover possession of 700 shares of a certain stock, brought by plaintiff as assignee of one EL, the defendants sought to plead in bar a judgment rendered in an action brought against them by EL, to recover certain shares of the same stock. It appeared that H. had transferred his interest in the 700 shares to plaintiff before the commencement of the latter action. Held, that a motion for leave to interpose a supplemental answer, pleading the judgment in bar of the present action was properly denied.

Appeal from a special term order denying a motion for leave to serve a supplemental answer.

John Cummins (J. Warren Lawton, of counsel), for app’lts; Edward P. Wilder, for resp’t.

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 same 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 Electro-Graphic 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 Hail 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 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 judgment 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

p. 562

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 hy 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 disbursments.

Van Brunt, Oh. J., and Brady, J., concur.