*1 281 March, Demaebst v. Dabs. of case. Statement P. v. Martha Appellant, Peter Darg, Demarest, Respondent. judgment jurisdiction a The court of litigated a competent point is conclusive in all controversies when the parties, subsequent same matter comes directly question. There is no difference in adjudica- application whether first rule, tion is in a formal or in in their action, character. summary This case comes here from the appeal of the judgment Court of Common Pleas of of Hew a York, city affirming entered on verdict for the defendant judgment directed hy court on trial. The failed to appellant appear in this and the case was submitted on the re hearing spondent’s points. statement of facts is from the following adopted in the court
opinion below. pronounced by J., Hiltoh, John of the husband died defendant, intestate the same October, 1846, defendant was year appointed hy Hew county surrogate York, administratrix of his chattels effects. goods, Among to be administered was leasehold property estate, she to Ira 1847, sold from him in January, Burge, receiving his note In March §2,600. payment following, note an before the action was paid, brought Court John S. Demarest wife Supreme hy the defendant and for the an others, purpose establishing of John this suit will injunction the defendant from granted restraining intermeddling ‘or with the estate effects. Pend- administratrix otherwise Thomas J. Coleman was receiver suit, appointed ing and in rents profits property deceased, addition was 1861, appointed special December, note then held but which on defendant, hy his her delivered over to he hy him, appointment the amount of which, afterwards was with paid it, interest, In June 25th, 1852, §2,808.13. was, February following, Court dismissal of decreed, upon hearing, 36 Tibbaht.—Yol. V. Darg. of App’ls, Deharest
Statement case. *2 and commenced, the action thus dissolved complaint thus defendant was injunction whereupon granted, administratrix of the re-appointed by estate, surrogate, and entitled as such to the of John of &c., Darg, the defendant and In Cole- 1853, note. March, Burge these which a proceeds, by man had settlement respecting in lieu thereof three coal bonds for the defendant received it the Chartiers Coal which, of Company, $2,500, had been and invested, claimed Coleman, money of At $153. or about this a difference balance check for and time the defendant guaranty gave upon she suit now and which which brought, acknowledged and difference full mentioned, the bonds settle- receiving as claim Coleman special ment of her receiver, him and from all note, discharged Burge and she assumed the therefor; further, liability responsibility in the to all interested estate John accounting persons and his and to save Coleman heirs deceased, Darg, agreed instrument with the harmless therefrom—the concluding as she, assertion had full that, administratrix, defendant, make such a settlement. power to the suit thus dis- In several 1854, parties May, and notice of thereof missed, presentation petition upon court for an order served on Coleman, applied duly an account of his as him to render proceedings requiring rents and trustee and also receiver profits, Burge special that he ascertained, the amount in his hands pay being upon those entitled it over to distributed court, among be there was applica- it. opposition It seems on an order of reference was made May tion, accordingly to take Hobart, the court, Dayton Esq., 12th, 1854, by settlement Coleman, the accounts pass in his ascertained, amounts hands and the being thereof, the referee to be it into the hands of that he pay directing And it further, entitled to it. the parties distributed among that Coleman such reference, was provided at to summon before to the suit were liberty March, Daeg. of case.
Statement interested so accounts, referee persons settled. finally had under this it seems, any Before, defendant, and while ignorant order, she caused to be made its application granted, having (cid:127) an order Coleman to account to the court for requiring note. The which this petition upon respecting with notice of the based, was, application intended motion served court, personally duly that as administratrix of John stated she had rendered to the a final account deceased, surrogate and been *3 proceedings, fully discharged, except and as to which Coleman note, Burge had in no for a small sum which accounted, way except was, in before received her and as to the three stated, by cash, coal bonds delivered to her settlement they fraud and imposed- upon by misrepresentation were of no and that value, instead of him been invested in them at or money having by about the time of its as he had to receipt, represented her, that the as she him in believed, been used money, his and the bonds had business, afterwards for a procured nominal and were sum, worthless.
the On of this Coleman hearing application, appeared, under all denied oath the fraud and deception charged against and him, investment in the coal bonds had been made in and at good faith, Darg’s request; as such he had receiver, settled with her as administratrix, taken from her an further indemnity and accounting, therefore was from the trust fully discharged respecting note. He concluded his answer Burge to the petition by its dismissal with After asking costs. hearing parties, the court referred it to Theodore to take referee, Sedgwick, all issues involved testimony upon petition and answer, the papers, accompanying report to the all court, until the reserving questions coming when the matter notice report, brought up of either party. App’ls, Demaeest
Statement case. the defendant, been notified of the Subsequently, having to Hobart, reference thereon. appeared its During progress, that he Coleman insisted should be called only for the received him account from the real moneys estate of John deceased, excluding but the note, Burge decided and held that otherwise, referee under the order of he was reference, accounts required respect both as to the note and the real each, estate. Shortly after this Coleman decision, court to have the applied note respect continued under accounting Burge reference to the order of Mr. Sedgwick, withdrawn from the consideration of Hr. under the Hobart, order of refer- to him. The after ence counsel for all hearing denied interested, application, directed that to Hr. the reference the order and Sedgwick, proceed- be revoked and thereon, and Hr. Hobart ings discharged, directed execute order -of fully Hay 12th, 1854, was directed account for the Coleman as in matters, the order provided. effect this direction was to engraft reference issue presented Hobart, petition Hrs. Darg and the of Coleman to it, answer which had been originally Hr. to take referred to to. Sedgwick proof *4 When the next before Mr. parties appeared Hobart, upon the for Hrs. consolidated, reference thus counsel ten- Darg coal three and dered to Coleman the thereafter bonds, their-value and respecting character, testimony given referred to to the transactions Hrs. petition and as it. and answer to Coleman’s Darg, the referee of the reference, At the close determined in claim of Hrs. Coleman by Darg, finding favor received the to have the had been shown Burge or valid had shown any legal payment thereof, note, from his trust thereof; special discharge or any to and did referee determine the proceeded and thereupon ascer- interests of parties moneys the rights in hands. Coleman’s him to be Hotice tained remaining been this report having tiie motion for confirmation Dehabest ti. -'March, of case.
Statement counsel attended and to his excepted, upon given, Coleman that the referee erred with charging the ground as the note, being personal property, Burge also that he administratrix; been over paid having offered reference to testimony upon erred excluding had been that Coleman show discharged payment note of that it was Burge, finally the proceeds that Coleman the administratrix the clearly proved paid while if the collected moneys report adopted, receive would be entitled to one-half of she over money again. on June 30th, 1856, confirmed this after credit of about addition
decision, $300, allowing those allowed referee, order was thereupon and distribution of the made, directing payment then note,. amounting $3,015.07, among entitled to it. Cole- appearing Subsequently, man to make as directed failing last men- payment, tioned order, court awarded an attachment as for a he contempt, unless as directed against him, paid forthwith, to the distributive such share of respect moneys to Mrs. he was directed to it belonging into the pay United States Trust to abide the result of Company, action be commenced within it, such thirty days thereafter, without, however, by direction, of Coleman and intending adjudicate upon rights Darg any respect.
That thus has action, foreshadowed, .brought plaintiff, present of Mrs. guaranty at so the time of given by settlement Coleman and her, March 10th, 1853; plain- tiff, succeeded assignee, having Coleman any rights the instrument which forms of this subject suit. The defense here a reiteration of the substantially fraud *5 deception petition before Darg and a referred to, statement general of here them narrated, claiming of Coleman and rights herself, such respecting and the guaranty, pro- Dap.g. v. App’ls,
286 Respondent. Arguments for had been therein fully adjudicated ceeds and determined. these facts trial of this case substantially appeared
At the orders, proceedings produced from records, original the files of the it was Court, defense of res established. adyudicata claimed and directed a verdict for defendant. so held, judge & for the Matthews Swain, respondent. on this whether the The sole court appeal is,
I.
question
that the defendant’s
of res
erred
answer
adyudd
deciding
'
a mere
was sustained
This is
cata
proof.
v.
9 N. Y.,
law.
Foot,
463.)
(Pratt
fact
submitted to
There
no
questions
disputed
such
and there
submit
questions.
request
any
jury;
or can be dis
conflict
facts existed,
If
any uncertainty
at the trial is conclusive in
decision of
covered,
judge
the defendant.
How.,
favor of
v.
17
(Bidwell
Lament,
357;
18 N.
v.
Y.,
Winchell Hicks,
565.)
"Whenever a matter
has been once liti
II.
controversy
—
who have
gated
including
right
—
and control the
&c.
before
tribunal
proceedings,
appear
then such
authority
jurisdiction,
adjudica
competent
whether
form
tion,
decree, order,
judgment,
report,
final and
is
conclusive as
such
&c.,
decision, verdict,
parties.
an
It works
matters
only
estoppel,
respects
specifi
and determined
also as to all
cally litigated
thereby,
involved
the issues
matters fairly
arising upon
matter of the second contro
subject
although
question,
which the
or the
second
grounds upon
adjudication
versy,
And
be different.
passed
may
questions
sought,
3
v.
(Gardner Buckbee, Cow.,
by parol.
120;
may
proved
3
Birkhead v.
238;
v.
5
Denio,
Dias,
Brown,
Bonchard
4 N.
v.
v. Brown,
Y., 71; Bangs
134; Doty
Sandf.,
Strong,
6 N.
Davis v.
Coatsworth,
137;
Tad
Y.,
White v.
id., 315;
v.
Castle
N. Y., 329;
Opinion per Court, of the J. Davis, a settlement with Coleman Mrs. (plaintiff’s Darg, upon of which has been contested assignor), validity Mrs. by without consideration and it being fraudulent; his was so found was sustained referee, finding .the court. defense of res The therefore adjudicada proper in this case. ' court The admitted evidence on the J. trial, Davis,
the minutes of the taken before the referee on the testimony the matters referred to him, of hearing notwithstanding of I do not see sound objection exception plaintiff. any to their were taken from the objection They admissibility. files of the Court and were of the Supreme part the referee with other which, documents ‘papers, that court its final order based of confirmation. They and there no record, reason for eliminating them from it. showed that, They point fact, ques- tion of fraud in and covenant on which obtaining receipt this action is based, before the referee litigated before the for motion court, confirmation, passed both tribunals. And were the upon by they best evidence of that The fact. counsel used on points the argument Court before the were not in evidence Supreme admissible any they immaterial under purpose; wholly the direction to the case could given pos- have harm to the worked I sibility plaintiff. think, was no error in the there admission of therefore, evidence, interference for our with verdict. calling The for consideration whether the question is, only the referee and before Court, are Supreme to be as res adjudicata regarded right plaintiff and covenant recover suit. Court, pending litigation whether John died intestate, Darg appointed plaintiff’s note assignor special John of Ira estate, administratrix received Darg’s that John It did die finally determined Darg Burge. and Mrs. to all intestate, Darg was reinstated rights of App’ls, Davis, Court, per
Opinion J. she was enti- that character undoubtedly In administratrix. *7 of the distribution, Burge for receive, tled to of hands. The course proper getting in then note, plaintiff’s have the action and been through them would, undoubtedly, special receiver, which appointed of the court, order But he was liable account. in strictness, to whom only, undertook administratrix, and Mrs. Barg, the receiver and in so instead themselves, doing, matter settle the he turned out the bonds of a her the money, of paying to have invested he claimed it, which coal company which bond indemnity her the receipt took discovered, It was subsequently this suit brought. bonds were that the coal company’s Mrs. claimed Barg, which the receiver’s and that representations, worthless, take were false and induced to them, fraudulent,.and, she was and settlement be- insisted, as she accounting therefore, and herself was the receiver ineffective. By tween wholly and orders of the in, Court, proceedings both as receiver of the whole accounting, plaintiff’s the rents and Barg’s lands, special profits referred to referee Hobart such _ were of the Burge Mrs. that all interested, manner including Barg, and did entitled contest to, appear administratrix, the receiver before such referee. and liabilities the rights note it was not plain- disputed by In Burge respect full it in amount of money, had received that he tiff but ad- .for it to the accounted that he fully he insisted but her liability and taken receipt discharge ministratrix, of the him. On the to indemnify her with obligation interested and of some Mrs. Barg, administratrix, attacked for the settlement parties, referee was their of the favor, fraud. finding it before after contested Court, litigation and the Supreme and the evidence taken before the referee’s report based on m toto, it so far as of the referee confirmed him, Mrs. Bnder that confirmation Barg this question. related for her distributive share por- entitled to receive large note. subsequent By tion March, per
Opinion Court, Davis, J. the receiver order made'in contempt, punish proceedings into the trust her ordered to be company, paid proportion to it to be com- the result of action abide this order declared menced within thirty days; expressly it that was to he treated or considered as not adjudication or of Mrs. either of the receiver rights, Darg. To action now covenant of brought upon indemnity contained in sets defense the Darg up receipt, same fraud men- above litigated proceeding as res and also sets those tioned, up adgudicata question. am which it can I at a loss to see any ground held that the determined issues of suit were finally *8 to. Those referred proceedings clearly the within the court; jurisdiction ultimately they embraced the that and all the should parties questions have been before it. an The receiver was officer of brought the entitled to its and under its protection direction, not but be action without its subject leave, prosecuted by to its but, be according regular practice, brought a in court which the summary accounting by proceeding, would the of all adjudicate upon protect parties. equities The in court had ample power protect settlement with, to, administratrix, payment because she was the Burge note, proper channel which the were to be through distributed; and there is I room, but for the think, question fraudulent of the receiver he have would practices pro- tected further his act against any claim, although making in settlement was not accordance with the technical mode of himself from relieving liability.
The point between the controversy parties fraud in covenant and obtaining now in suit. that issue the Upon contested the parties liability, the receiver neither made nor of con- ground It test. be .true that the may have been proceedings might so conducted not to have involved that question, they and on not, were so conducted as contrary they SI V,
Tifbaut.—Vol. y. App’Is, 290 [Gt. Dehaeest Dabs. Court, per Denio, Opinion J. Oh. for the far as concerned accounting no other so
involve is put note. this suit same question again By in issue. directly a
The
of a court
of competent jirasdiction
judgment
in all sub
is conclusive
between the parties
point
litigated
matter comes
controversies when the same
directly
sequent
3
cases
Comst., 522,
v. Connor,
(Embury
question.
4
White v. Coats
Comst., 71;
v.
cited;
Brown,
there
Doty
J.,
In the last cited case, Edmonds,
Seld.,
worth,
137.)
“
it to
well settled
I
be
judgment
suppose
says:
is
point
of concurrent
directly
a court
jurisdiction
conclusive between
same
or as evidence,
bar,
plea,
in another
matter
the same
directly
parties
of com
coiu’t
in other
the decision
words,
or
cause,
conclusive
the same
directly upon
point
jurisdiction
petent
same
comes
controversy
when
point
again
cited
or
authorities
(See
directly
collaterally.”
is no
him at
There
difference
143.)
appli
page
in a
first
of this rule whether
cation
adjudication
in a
charac
its
formal action
summary
proceeding
as the proper person it This assets. but was at all was, enough, perhaps, right done without and what more events objection, important, it so done of a was court of judgment competent But was defendant, one jurisdiction. and in that these character entitled distributees, was to one- half of whatever due sum from if might she Coleman, it was precluded cove- claiming receipt nant of which she had to Coleman. The indemnity given agreement indemnify same parts transaction the same depended upon consideration. The defense the covenant of against was indemnity precisely with that which was set up against was instrument which intended as a operate release. the covenant was entered Indeed, into in consideration of If that was alleged payment. payment inoperative of the fraud or concealment account of Coleman respecting coal the character the covenant made company bonds, that consideration of payment equally inoperative void. referee Mow, that account- established payment ing the bonds delivery could not be' as availed of on account of the payment cir- it. It was a cumstances which did alleged payment interested not bind there it, parties I can to it discover fraud except objection and imposition. defendant was
It be said bind may competent a collateral herself there-' thing payment, taking her own release share and to cove- distributee, nant to the claims of the other distributees. indemnify against if the others had alone This is true, and had claimed their own proceeding against only them to their shares shares, adjudication compelling pay have determined would not necessarily anything against Coleman and the defend- arrangement validity ant. take such She satisfactory payment *10 for her and a valid consideration to indem- 'herself, agreement the the claims of others. But nify against argument of App’ls, Opinion Court, per Denio, Oh. J. the not aid as his because
will plaintiff assignee, a defendant was the her claiming party accounting, the collected of money representatives, rights Burge’s fraudulent and the whole repudiating inoperative arrange- decided in her ment. That issue was favor. She was her and it thus neces- awarded portion money, could not be arrangement supported sarily adjudged It of tribu- its was, therefore, any parts. judgment the nal issue having competent jurisdiction upon very point and it the from case; present estops necessarily plaintiff the which the transaction up validity upon setting on arose. covenant sued order made attachment
The proceedings, was to be withheld defendant’s share which money suit to commenced await event be from in this is of no suit. bond, consequence indemnity legal disclaims effect The order itself any rights The resulted the order already parties. estoppel present not intended the effect it was made, qualify It than amounted no more the compelling determination. which to furnish any recovery the defendant security The differed her. parties probably against court the effect of gave adjudication, until retaining money advantage plaintiff determined. should be which were admitted testimony minutes orders immaterial, petitions, objection plaintiff’s all which the record, and other constituted papers do could But constitute the they estoppel. required did plaintiff harm, prejudice possible way. .from. appealed
I am favor of judgment affirming affirmed. Judgment