Van Alstyne v. President, Directors &c. of the Indiana, Pittsburgh & Cleveland Rail Road , 1861 N.Y. App. Div. LEXIS 83 ( 1861 )

By the Court, Sutherland, J.

There was conflicting testimony on the question of fact, whether the agreement for a year was vacated by mutual consent. The referee found that it was, and that finding cannot be questioned on this appeal.

The other question is, were the defendants estopped by the record of the recovery against them in the former action, which was introduced in evidence on the trial, from showing, in this action, that the agreement for a year had been so vacated ? The referee held as matter of law, that they were not. This was clearly right.

This action was not brought for the same cause as the former one. The alleged cause of action in this suit was. the non-payment of the stipulated wages for the months of November and December; in the former action, the nonpayment of the stipulated wages for the months of September and October. The causes of action in hoth suits were founded upon the same agreement, but were not the same.

New York General Term, February 4, 1861.

The defendants did not appear or answer in the former action, and of course did not set up the matter as to the agreement having been vacated by mutual consent, in that action, by way of defense; and that matter could not have been tried or passed upon in that action. Had the defendants appeared in the former action and put in a general denial, without setting up the matter as to the agreement having been vacated by mutual consent, by way of defense, it would not have been necessary for the plaintiff to prove that the agreement had not been rescinded or vacated, in order to recover in that action; it would not have been necessary for the plaintiff to go out of his case and prove a negative.

The allegation, in the complaint in the former action, that the defendants had refused to pay the plaintiff for the months of September and October, or had rejected his services when tendered, “ ivithout any legal excusedoes not affect the question. Surely it would not have been necessary for the plaintiff to show whether the defendants had any excuse, or to raise the question whether they had any excuse.

The counsel for the plaintiff substantially takes the position, because the defendants chose, voluntarily and without being under any legal obligation to do so, to pay the plaintiff for the months of September and October, that therefore they are bound to pay him for November and December, although they now insist upon their legal rights.

In my opinion the cases cited by the counsel for the plaintiff have no application to the point in question; and the judgment should be affirmed with costs.

Clerke, Allen and Sutherland, Justices.]