Greenberg v. Lewis ( 1915 )

LEHMAN, J.

The plaintiffs sue for goods sold and delivered. The answer is a plea of res ad judicata. After the plaintiff had rested, the defendant introduced in evidence, to sustain the plea of res adjudicata, copies of the summons, complaint, and answer in the case of Geher v. Greenberg and Lewis. Inasmuch as the judgment roll in that action was lost, it was “stipulated by both sides that the action was tried in the Second District Municipal Court in the borough of Manhattan, before Mr. Justice Young and a jury in part IV on October 9, 1914, and that it resulted in a judgment for the defendant.” It appears that the complaint in that action was based upon a check for $90 and made by this defendant, Harry Lewis, to these plaintiffs, and indorsed by them to one Geher, the plaintiff in that action. Both the plaintiffs and the defendant in the present action were named as parties defendant in that action, but the present plaintiffs claim that they were never served therein. Of course, even if the issues litigated in that action between Geher and this defendant were exactly the same as those which the present plaintiffs seek to litigate in the present action, the judgment in favor of this defendant would not be binding on these plaintiffs, unless by service of the summons or by voluntary appearance they became parties to the action. It is not disputed that there is no evidence in the case that these plaintiffs were parties to the former action, but it is claimed that the parties so stipulated at the trial. I find in the record no such stipulation.

Judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

WHITAKER, J., concurs. GUY, J., dissents.