Levy v. Backer — 39 N.Y. St. Rep. 55

Majority

p. 55

Samuel D. Levy, Resp’t, v. Jacob Backer et al., App’lts.

(New York Common Pleas, General Term,

Filed June 1, 1891.)

Headnote

1. Res adjudicata—Pendency of another action not a bar.

In an action brought to recover money alleged to have been laid out and expended at request of defendants, the latter offered in evidence a judgment roll in an action in the district court as being obtained for the same cause of action, but expressly said that they did not offer the judgment rendered in that action in evidence. Held, that it was no bar to this action, as they merely showed that there was an action pending, and did not show that there had been a judgment rendered in that action

2. Same.

The former action was originally brought for $250, and the complaint stated it was for an account stated, services rendered. Held, that this did not necessarily include moneys advanced, for which cause this action was brought; and as it was a mixed question of law and fact as to whether the claim for moneys was litigated, and there was sufficient evidence to sustain the finding oí the justice that it was not, this court will not disturb the finding of the court below.

Appeal from a judgment rendered in the district court of the city of New York for the fifth judicial district

Samuel D. Levy, resp’t in person, Sidney H. Stuart, for app’lts.

—This action was brought by the plaintiff to recover the sum of $99.99, money alleged to have been laid out and expended at the request of appellants. The answer, among other defenses, interposed as a bar an alleged judgment obtained

p. 56

by the plaintiff against the defendants in the fifth district court, for the same cause of action for $117.49 on the 13th July, 1887, which had been paid. On the trial it appeared that the plaintiff, an attorney, had been employed by the defendants in February, 1887, to search the title to premises 247 Second street in this city. The plaintiff testified that at the time there was nothing said as to the amount of compensation for his services,, that he did the work, made out the original searches, sent in requisitions, etc., and passed the title; he also testified that, while engaged in searching, lie advanced the money necessary to pay for those searches, upon the distinct and separate understanding that they should be repaid to him at once. The defendants, on- the trial of this action, offered in evidence the judgment roll in the first action, but expressly said that they did not offer the judgment rendered in that action in evidence; consequently they failed to show anything more than that there was an action pending, and did not show that there had been a judgment rendered in that action, which would not prevent the trial of this action,, or the rendering of a judgment therein. In other words, the mere pendency of one action is not a bar to the commencement and prosecution to judgment of another.

But if the judgment in that action had been introduced in evidence, it would not have been a bar to this, because, upon the trial of the action, the plaintiff expressly testified that the bill for moneys advanced for the defendants was not included in that action. It is true it was originally brought for the sum of $250, and the complaint states it was for an account stated, services rendered : this did not necessarily include moneys advanced. It also appeared on the trial of that action that two separate bills, one for services and the other for moneys expended, were rendered the plaintiff. It was in dispute whether these bills were upon one paper or not, and whether or not both were included in that action was one of the questions litigated upon this trial. It was a mixed question of law and fact whether the claim for moneys expended was litigated in the first action, and thus was a bar to this,, or not. There is quite sufficient evidence to sustain the finding of the justice, that the bill for moneys advanced was not included in that action, and consequently he was right in the conclusion of law that the former action was not a bar to this, and under the circumstances, we will not disturb the finding of the court below.

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

• Bischoff, J., concurs.