Tysen v. Tompkins , 10 Daly 244 ( 1881 )

Van Brunt, J.

[After stating the facts as above.]—The objections which were made to the ruling of the court below are these:—

Fi/rst. That it was error to hold that the proceedings before the justice upon Staten Island were a bar to the defense interposed in this action; and

Secondly. Because the proceedings before said justice could not be considered on this trial, for the reason that the appellant was not present there either in person or by proxy.

The counsel for appellant has discussed with great ability and has examined the authorities with great diligence relating to the question as to what makes a question res adgwdicata, and when it is not, and has called our attention to the opinion of Mr. Justice Field, as delivered in the case of Cromwell v. The County of Sac (94 U. S. 351), as containing an epitome of the whole law on this particular subject; and he quotes as follows:—

“There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties, upon a different claim or cause of action. In the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to every other admissible matter which might have been offered for that purpose. . . . The language, therefore, which is so often used, that a judgment estops, not only as to every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented, is strictly accurate when applied to the demand or claim in controversy.

. “ But where the second action between the same parties is based upon a different claim or demand, the judgment in the prior action operates as an estoppel, only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.

“ In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit from a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.

“ It is not believed that there are any cases going to the extent that, because in the prior action a different question from that actually determined might have arisen and been litigated, therefore such possible question is to be considered as excluded from consideration in a second action between the same parties on a different demand, although loose remarks looking in that direction may be found in some opinions.

“ On principle, a point not in litigation in one action, cannot be received as conclusively settled in any subsequent action upon a different cause, because it might have been determined in the first action. Various considerations other than the actual merits may govern a party in bringing forward grounds of recovery or defense in one action, which may not exist in another action upon a different demand, such as the smallness of the amount, or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and his own situation at the time. A party acting upon considerations like these, ought not to be precluded from contesting in a subsequent action other demands arising out of the same transaction. A judgment by default only admits for the purpose of the action the legality of the demand or claim in suit. It does not make the allegations of the declaration or complaint, evidence in an action upon a different claim.”

This decision is entirely in harmony with t.he decisions of the courts in this state as contained in the cases of Davis v. Tallcot (12 N. Y. 184), Gates v. Preston (41 N. Y. 113), Blair v. Bartlett (75 N. Y. 150).

For the decision of the questions involved upon this appeal, it seems to me entirely unnecessary to discuss whether Mr. Rawson had or had not the authority to appear upon the trial of that action. Even if no answer had been made by the defendant to the complaint of the plaintiff before the justice, the judgment of the justice would have been final as to the defense set up in the answer of the defendant in this action, for the reason that the judgment in the justice’s court was an adjudication that the premises had been rented by the plaintiff to the defendant at the rate of $1,200 a year, and that the plaintiff had performed all the conditions of such letting upon his own part, if any there were.

The answer of the defendant in this case alleges that it was mutually agreed that the plaintiff should do certain repairs as the condition of the defendant’s leasing the premises. It would have been necessary, if that agreement had been established, for the plaintiff to have proved, before he could have recovered a dollar of rent, that he had complied with the terms of the agreement as far as the conditions were concerned which he had agreed to fulfill, and upon the failure of such compliance his complaint must necessarily have been dismissed.

Now the result of the justice’s judgment was either an adjudication that there were no conditions upon his part to be performed, or that, if such conditions formed part and parcel of the contract, he had performed them. In other words, it was an adjudication that, as the parties then stood, the. plaintiff was entitled to recover upon that lease.

This brings the case precisely within the language of Mr. Justice Field, who says, that “ The language, therefore, which is so often used, that a judgment estops, not only as to every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented, is strictly accurate when applied to the demand or claim in controversy.” In the case at bar, as has already been stated, the adjudication of the justice’s court, even if it had been by default, would have been an adjudication that the plaintiff had a right to recover rent upon that lease.

But it may be said that the allegations of the defendant in this action are set up in his answer, not only as a defense, but as a counter-claim. The answer to this suggestion is that those allegations are set up as establishing an agreement, and if the agreement was mutual, then the adjudication, as has already been said, was an adjudication that the plaintiff had complied with the terms of the agreement as far as he was concerned.

An examination of the ease of Davis v. Tallcot, entirely sustains this view of the law. But we may go further and hold that the precise question involved in this case was litigated before the justice of the peace. The answer which the defendant makes to this suggestion is, that although by the record it does appear that that defense was interposed, and that the plaintiff was cross-examined upon it, yet that there is no evidence that the attorney who appeared for the defendant in that action had any authority to put in such an appearance. Upon the return day of the summons the defendant appeared personally and his answer was filed. Upon the adjourned day this attorney appeared and asked for an adjournment, which was denied, and then the trial proceeded.

I have examined all the authorities which have been cited by the counsel for the appellant upon this appeal in reference to the authority of the attorney to appear, and I find no case in which an adjudication has ever been disturbed or a record has ever been discredited because of the want of the authority of the attorney to appear, unless the defendant has not only disclaimed such authority, but has satisfied the court that the attorney had no authority to appear. The record in this case contains nowhere any disclaimer upon the part of the defendant of the authority of Rawson to appear for him, and upon the contrary, the question put by the counsel for the defendant at the sixty-fifth folio of the case, seems to show conclusively that the defendant at that time had no idea but what the attorney who appeared for him in the justice’s court had the right to appear for him; and it would seem that the point of the want of authority of the attorney to appear was not then even suggested or thought of.

Under these circumstances it would seem to be a great departure from the rule established by the authorities to invalidate a judgment because the plaintiff did not show a fact which was peculiarly within the knowledge of the defendant, that his attorney had the power to appear for him.

The judgment must be affirmed with costs.

Chaeles P. Daly, Ch. J., and Beach, J., concurred.

Judgment affirmed, with costs.