Schwenk v. Widemeyer — 39 N.Y. St. Rep. 34

Majority

p. 34

Henry Schwenk, Resp’t, v. William Widemeyer, App’lt

(Supreme Court, General Term,, Second Department,

Filed May 11, 1891.)

Headnote

Judgment—Res ad judio at a—When a bar.

Plaintiff was a wagon-maker and made two wagons for the defendant, and brought action to recover an alleged balance due on the contract price. Defendant offered in evidence a judgment roll in an action of replevin brought bv him against plaintiff, in which he obtained possession of one of the wagons, withheld on the ground of non-payment, the other having already been delivered. Held, that the replevin judgment only settled the right of the defendant to the one wagon, and did not settle what was due on both, and that the judgment roll was properly excluded in the second action.

p. 35

Appeal from a judgment of Richmond county court in favor of plaintiff, and from an order denying a motion for a new trial.

John Widdecombe, for app’lt; W. J. Powers, for resp’t.

—The trial of this action developed a single question of fact. The plaintiff was a wagon-maker and had made two wagons for the defendant. The only point of difference between the parties was whether the contract price of the two was to be $350, as claimed by plaintiff, or $290, as claimed by defendant. The jury found in favor of the plaintiff upon the issue. The defendant was a grocer and had furnished the plaintiff with groceries to the amount of $182.66. There were other credits for articles bought for the wagons and paid for by defendant which left a balance of $98.87; the interest added made the verdict $103.86. The verdict is final unless some error was committed on the trial. It seems that the defendant had brought an action against the .plaintiff before this action was commenced and had then obtained a judgment. The pleadings in that action are not given. It seems that this judgment was pleaded in bar of this action. It seems also thht the judgment roll was offered and rejected because the judge decided that “that judgment was not a bar.” The judgment roll is not given and we cannot say that it was a bar. ' It seems that the judgment roll was for the possession of the second wagon, which the present plaintiff refused to give up until he was paid. It seems that in the replevin action before Justice Hitt the defendant paid in a certain sum of money which he claimed was the balance. The replevin judgment only settled the right of the then plaintiff to have possession of the wagon. It did not settle what was due the plaintiff upon both wagons. This question could not have been litigated in an action of replevin where the issues were whether the second wagon should be delivered to the then plaintiff (now defendant).

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.