18 N.E.2d 296 | NY | 1938
The Appellate Division has certified to this court the question "Should the complaint have been dismissed on the ground that there is an existing final judgment or decree of a court of competent jurisdiction rendered on the merits determining the same cause of action between the parties?"
The plaintiff is the widow of Hugo Hellstern, deceased. She was duly appointed administratrix of his estate. Thereafter she, as administratrix, brought a proceeding in Surrogate's Court to discover assets. A decree was duly entered in that proceeding deciding that certain savings bank accounts of her husband which he had, in his lifetime, transferred to the name of the deceased as trustee for his children did not constitute assets of the *330 estate, also that such bank accounts belonged to the children who were parties in that proceeding.
While the proceeding was in the name of the plaintiff as administratrix it was contended upon the hearing that the money was placed in the bank accounts by her deceased husband in his name as trustee for his children in order to defraud her out of any interest therein as his widow.
Thereafter the plaintiff brought an action in the Supreme Court in her individual capacity against the children who were parties in the Surrogate's Court proceeding, alleging that the same bank accounts were placed in her deceased husband's name as trustee for his children for the purpose of defrauding her of her marital rights in her husband's estate. The defendants in that action, who are the same as the defendants here, interposed the defense of res judicata, claiming that the Surrogate's Court decree constituted a bar to that action. Upon motion that defense was stricken from the answer. That order was not reviewed on appeal. The plaintiff was successful in that equity action and a judgment was entered in her favor, adjudging that the transfer of such bank accounts into the name of her husband as trustee was void and that she was entitled to one-third of the amount on deposit in such accounts as the surviving spouse of Hugo Hellstern, deceased; that the defendant children, who are the same children who are defendants here, should account for any money withdrawn from the bank accounts, and that they hold such money, amounting to $3,791.99 and interest, as trustees for plaintiff, and that execution issue therefor against defendants. Thereafter the plaintiff in that action, who is the plaintiff in the action at bar, caused an execution to be issued on that judgment against the defendants who are the same defendants as in the pending action. Supplementary proceedings were instituted, also contempt proceedings, and the wages of one of the defendants were garnisheed. *331
Having been unsuccessful in collecting the judgment, the plaintiff thereafter commenced this action in conversion against the same defendants, alleging that they had converted the money, amounting to $3,792, awarded to the plaintiff in the prior action in which it was determined that they held the same as trustees.
A motion was made by defendants under rule 107, subdivision 5, to dismiss the complaint on the ground that the former Surrogate's Court decree and the former judgment in the equity action were res judicata. The motion was denied by the Special Term and the order was affirmed by the Appellate Division by a divided court.
Undoubtedly the general rule is as stated in Collins v.Hydorn (
However, the judgment in the equity action between the same parties constitutes a bar to the present action. In that action the title to the identical fund was litigated between the same parties. The judgment awarded the fund to the plaintiff and execution was directed to issue in favor of the plaintiff for the identical amount claimed in this action. The very conversion alleged in this action was established by the proof and findings in the prior action. In the equity action the plaintiff was not content with a decree which merely established her title to the fund but she secured a judgment which directed execution in favor of plaintiff for the amount involved. She caused an execution to be issued and took the proceedings heretofore referred to in an effort to collect the judgment. She cannot now maintain another suit to *332
recover the same fund. She cannot have two judgments against the same defendants to indemnify against the same loss. (Caylus v.N.Y., K. S.R.R. Co.,
It is the contention of the plaintiff that two independent causes of action existed to recover the same sum of money, the first, in equity, to set aside transfers of the money in question as invalid, and, second, at law, to recover damages for conversion.
The facts necessary to establish the second cause, if not essential to establish the first, were in fact established in the first action. While the plaintiff contends that the facts upon which the alleged conversion was based occurred after the facts alleged as the basis of the first cause of action, it is plain from the findings in the first action that they were known to the plaintiff before the judgment was rendered in the first action, and that they were the subject of proof there. It being an equity action it was within the power of the court to render any judgment to which the plaintiff might be found to be entitled.
In any event it was unnecessary that in the first action matters sought to be litigated in the present action and alleged to have occurred subsequent to those which formed the basis of the judgment in the first action should have been actually litigated in the first action. Under the circumstances here presented, it was enough, to make the judgment in the first action an effective bar to the present action, that such matters might have been litigated in the first action. The applicable rule was stated by Judge CARDOZO in Schuylkill Fuel Corp. v.Nieberg Realty Corp. (
The order of the Appellate Division and that of the Special Term should be reversed, with costs in all courts, and the motion to dismiss the complaint granted, with ten dollars costs. The question certified should be answered in the affirmative.
CRANE, Ch. J., LEHMAN, O'BRIEN, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Ordered accordingly. *337