18 How. Pr. 123 | N.Y. Sup. Ct. | 1859
This action is upon a promissory'note for $100 and interest. The answer is, that the note was given upon the sale of a horse by the plaintiff to Hammond, and a breach of warranty by the plaintiff on .the sale, of the soundness of the horse. After issue was joined,
The latter action was brought to trial, when Hammond recovered judgment for one hundred dollars, besides costs. An appeal has been brought by the defendant in that action—the plaintiff in this—to the county court, from that judgment,which appeal is still pending. After tlicappeal was taken, the plaintiff in the present action moved at special term for an order striking out the answer of the defendant in this action, or for leave to make a supplemental reply setting up the judgment before the justice as a bar to the matter of the answer. An order was granted striking out the answer and directing that the plaintiff have judgment in the action; and the case is now before the court on an appeal from the order.
The defendant, Hammond, was not precluded, by the answer in this action setting up a breach of warranty, from commenc ing an action before a justice for a fraudulent representation as to the same matter. (Fabricotti agt. Launitz, 3 Sand. S. C. 743, 745.) But the judgment, in the latter action is clearly a bar to the cause of action on the warranty. , The warranty and fraud, as to the same thing, formed but a single cause of action, enforceable at the election of Hammond, by action on the warranty or for the fraud. A recovery in one of those modes is a bar to another action.
The fact, that an appeal has been brought, does not affect the conclusive nature of the judgment as a bar, while it remains unreversed.
In regard to the appropriate relief to the plaintiff, it is obvious that an order, allowing him to make a supplemental reply setting up the bar, would have been proper and adequate. But I do not perceive why the form of relief adopted at special term was' not allowable, in the discretion of the. court, there being no dispute in regard to the facts, and no room for doubt as to the law of the case.
I am, therefore, of opinion that the order should be affirmed.