Agate v. Richards — 18 N.Y. Super. Ct. 456

Majority

p. 456

Joseph Agate, Plaintiff and Respondent, v. James N. Richards, Defendant and Appellant.

Headnote

1. Where, in an action on contract for the sale of goods, wares and merchandise, a former recovery upon the same cause of action in a suit between the same parties is set up as a defense; a record of a recovery in a former suit in favor of a plaintiff and against a defendant of the same names, where the complaint in each suit alleges, as the only cause of action stated, the sale of goods, wares and merchandise by the plaintiff to the defendant during periods ending on the same day, and claims the same sum to be due, íurnishes prima fade evidence of the truth of the defense.

2. Identity of names in connection with the same or the like subject matter is presumptive evidence of identity of person.

(Before Hoffman and Woodruff, J. J.)

Heard, November 10th;

decided, December 10th, 1859.

This is an appeal by James N. Richards, the defendant, from a-judgment, in favor of Joseph Agate the plaintiff, rendered on a trial had before Mr. Justice Pierrepoht, without a jury, June 27th, 1859.

The summons is dated April 27th, 1858, and states that judg-' ment will be taken for $72.50, with interest from January 1st, 1858.

The complaint alleges a sale for cash, of goods, wares and merchandise, by the plaintiff to the defendant, between the 23d

p. 457

of May, 1855, and the 25th of December, 1856, consisting of “ colored linen shirts, silk cravats, suspenders, &c.,” of the value of $72.50; that such sum is due with interest from the 1st of January, 1857, and prays judgment for that sum and such interest, with costs.

The answer avers a former suit in this Court, by the plaintiff against the defendant, for the same cause of action, and a recovery by the plaintiff therein on the 29th of December, 1857, on said cause of action for $90.43 and that such judgment is in full force.

At the trial, the defendant, to prove such defense, introduced the record of a judgment in this Court, in favor of Joseph Agate as plaintiff against James N. Richards as defendant. The summons in it was dated November 21st, 1857; was served on the 24th of said November, .and states that judgment will be taken for $72.50, with interest from the 1st of January, 1857. The complaint in it, states a sale by plaintiff to defendant of goods and merchandise, consisting “of shirts, hose, suspenders, &c.,” between the 9th of November, 1854, and the 24th of December, 1856, of the value of $122.50; that $72.50, with interest from January 1st, 1857, is due, and prays judgment for that sum and such interest, with costs. Judgment in it, was perfected, for want of an answer, December 29th, 1857, for amount claimed,.. $72 60

Interest,........................................ 4 83

Costs,.......................................... 13 00

Total,...................................... $90 43

The Judge held, that there was not sufficient proof given of

the identity of the parties and of the cause of action in the two suits, and gave judgment for the plaintiff for $85.13, (the amount claimed, with interest;) the defendant excepted to the decision and appealed from the judgment.

0. Bainbridge Smith, for appellant.

1. It appears by the judgment roll in the former action, and the complaint in this, that the causes of action were between the same parties, for the recovery of the same kind of merchandise; that they accrued during the same periods, and that judgments were demanded for the same amounts. This constituted a de

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fense, and judgment should have been rendered for the defendant. (M arston v. Lawrence, 1 Johns. C., 397; Beals v. Cameron, 8 How. Pr., 414 ; Averill v. Patterson, 10 id., 85; Swart v. Borst, ,17 id., 69.)

II. The former judgment was conclusive upon the parties, not only as to the matter actually determined, but as to every other .matter which might have- been litigated therein. (Bendernagle v. Cocks, 19 Wend., 207 ; Embury v. Conner, 3 Comst., 511, 522; Doty v. Brown, 4 id., 71; Sheldon v. Carpenter, id., 579.)

III. The fact of the names of the plaintiff and defendant being identical in both suits, was prima facie evidence that they were the same persons in both actions. (Hatcher v. Rocheleau, 18 N. Y. R., 87.)

The j udgment should be reversed.

Wm. M. Niles, for respondent.

I. The appellant does not allege any other defense than a prior judgment for the same identical cause of action. We suppose that in a city of eight hundred thousand inhabitants, the mere production of a judgment roll against a defendant of the same name, is not sufficient evidence that it is the same defendant, .especially if the name be John Smith.

II. Even if that were not so, the case in judgment is not “ identical ” in a single particular with that in suit.

One is for sales between May 23d, 1855, and December 25th, 1856; the other is for sales between November 9th, 1854, and December 24th, 1856. One is for colored linen shirts, cravats, &c.; the other is for colored linen shirts, hose, &c. One is for sales to amount of $72.50; the other for sales to amount of $122.50. One is alleged to have been sold for cash; the other is not alleged to have matured before January 1st, 1857.

One claims judgment for $72.50. The answer sets up a judgment for $90.43, and no attempt to identify parties, goods, times or anything else, except by throwing up to the judge a paper purporting to be a judgment roll, and asking hiip to deprive the plaintiff of a claim sworn to as now existing, and admitted by defendant.

III. The “ answer is controverted as upon a direct denial.” That is, we deny that any judgment was recovered against this

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defendant, and we deny that any judgment of this Court is for this identical cause of action. (Code, § 168.) Both then must be proved by the defendant, (1 Phil. on Ev., 2 ed., p. 6,) and the papers prove nothing on either of those points. Besides, the judgment roll produced is a mere nullity on its face. It does not show any appearance by defendant, and does not show a service within the j urisdiction. Perhaps the summons was handed to Richards in Australia, and then, he not appearing, the Court had no jurisdiction. (Code, §§ 33, 138.) And lastly, if all this were not so, the judgment is not properly pleaded. Defendant alleges a public record on information and belief.

The judgment should therefore be affirmed.

The defendant set up in his answer a former judgment recovered against him for the same demand by the same plaintiff. The whole question is as to the identity of person, and cause of action.

The parties, plaintiff and defendant, have the same names in each suit, and not names of very ordinary occurrence. The complaint in the first action asks for judgment in the sum of $72.50, with interest from the 1st of January, 1857. The complaint in the second action is in this respect the same. The summons in each action is, in this particular, also alike.

The complaint in the present suit states sales of linen shirts, silk cravats, suspenders, &c., between the 23d of May, 1855, and the 25th of December, 1856. The complaint, in the former action, states sales between the 9th of November, 1854; and the 24th of December, 1856, of shirts, hose, suspenders, &c., to the amount of $122.50, and then avers that the defendant remains indebted to the plaintiff in the sum of $72.50,-with interest from the 1st January, 1857, on account of said goods and merchandise.

We think that there was enough presented to raise a presumption of identity and support the answer. The plaintiff should have been driven to repel this presumption. (18 N. Y. R., 89.)

Judgment reversed, new trial ordered, costs to abide event.