Avery v. Starbuck , 22 N.Y. St. Rep. 430 ( 1889 )

By the Court.—Sedgwick, Ch., J.

The action was for work and materials furnished to defendant for a certain yacht. The defendant answered. Afterwards he made the motion below which was to allow him to serve a supplemental answer alleging that, since the former answer, judgment had been entered in favor of defendant, in a suit in the U. S. District Court, in which the plaintiff was the present plaintiff, and alleging that the suit in the District Court was brought upon the same grounds and for the same relief as claimed in this action.

On the motion it indubitably appeared that the suit in the District Court, was terminated in favor of this defendant without any adjudication of whether or not the plaintiff had a claim for work and materials, and that the proceeding being in rein, the actual adjudication was, that if the plaintiff had a personal claim he had no lien upon the vessel, and this led to a dismissal of the libel.

I am of opinion, that it so certainly appeared, that the answer proposed could not sustain the defence by way of bar upon the fact, that the judge was right in not allowing an unsubstantial defence, but I also take into consideration that the defendant will have a right upon the trial to present the same record, as evidence of the facts in issue, and with conclusive effect, if the appellant should be right in his present assertion as to the effect of the record in the District Court. Marston v. Swett, 66 N. Y. 206; Krekeler v. Ritter, 62 Ib. 372.

The order should be affirmed with $10 costs.

Truax and Dugro, JJ., concurred.