215 A.D. 609 | N.Y. App. Div. | 1926
This is an action to recover on a burglary insurance
policy. The liability involved has been tried twice in separate actions between the parties. Upon the first trial, at the close of the plaintiff’s case, the court granted a motion for nonsuit and a dismissal of the complaint. Judgment accordingly was entered and the court made no provision for a dismissal without prejudice. (Civ. Prac. Act, § 482.) Respondent did not appeal or make a motion to have the judgment recite that the dismissal was without prejudice. In the absence of a dismissal without prejudice, the judgment Was a “ final determination of the merits of the cause of action and bars a new action between the same parties or their privies for the same cause of action.” (Civ. Prac. Act, § 482.) We have held that where it appears that no decision on the merits was or could have been rendered the failure to state in a judgment dismissing the complaint that such dismissal is without prejudice does not prevent the court from correcting the judgment either upon appeal therefrom or upon motion. (Caruso v. Metropolitan 5 to 50 Cent Store, 214 App. Div. 328.) Instead of appealing or moving to correct the judgment, the respondent has brought a new action for the same liability under the policy and has recovered judgment, from which the defendant appeals.
At the trial in the first action one of the defenses alleged and sought to be proved Was a breach of warranty by the plaintiff in procuring the policy. The warranty Was that the assured has “ never suffered loss by burglary.” At that trial the plaintiff admitted that jewelry had previously been stolen from him. He testified that he had informed the agent of the defendant at the time he applied for the insurance that this burglary had occurred but that the stolen goods had been returned to him. This testimony was stricken out as immaterial on the ground that if the goods had been returned he ' had suffered no loss within the court’s interpretation of the policy and the statement to the agent could not constitute a waiver of the terms of the policy. Upon further examination of the plaintiff, however, the plaintiff admitted that his salesman’s case, worth about five dollars, which contained the
At the trial of the second action the court construed the language of the policy as to “ loss by burglary ” to mean a temporary loss as Well as a permanent loss, holding that a loss of possession and use during the period of detention of the stolen goods was an actual loss, which was made known to the defendant’s agent before the issuing of the policy. The plaintiff has recovered a judgment reforming the policy in this respect upon the basis of waiver or estoppel as to the previous loss by burglary and has been permitted to recover on the policy. In this second action the defendant pleaded, amongst other defenses, the breach of this warranty but did not plead the former judgment in bar. The judgment roll and the testimony in the first action were offered in evidence, however, by the defendant as conclusive evidence of the points directly in issue and judicially passed upon, including the breach of warranty against a prior loss by burglary. The plaintiff objected to receiving the judgment roll in evidence unless it was accompanied by the testimony. The testimony and the judgment roll were both received. At the close of the whole evidence the defendant moved for a nonsuit and dismissal of the complaint.
There are two main rules of res adjudicata. One is that a judgment of a competent court, on the merits, is a bar to any future suit between the same parties or their privies upon the same cause of action. The other is that a point directly in issue and judicially passed upon in a judgment of a competent court, on the merits, cannot be again drawn in question in any future action between the same parties or their privies whether the cause of action is identical or not. A determination coming within the latter rule is not strictly speaking a bar or defense, but simply conclusive evidence of the fact or point determined, while a determination coming within the former rule is a bar or complete defense, the cause of action being merged in the judgment and the scope of the estoppel being complete and all inclusive. (Cromwell v. County of Sac, 94 U. S. 351; Southern Pacific R. R. Co. v. U. S., 168 id. 1; Gardner v. Buckbee, 3 Cow. 120, 126; Stokes v. Stokes, 155 N. Y. 581, 601, 602; Stannard v. Hubbell, 123 id, 520; Webb v. Buckelew,
The judgment and order should be reversed and the complaint dismissed, with costs.
Van Kirk and McCann, JJ., concur; Cochrane, P. J., and H. T. Kellogg, J., concur in result.
Section 1209 of the Code of Civil Procedure differs widely from section 482 of the Civil Practice Act. By section 1209 it is provided: “ A final judgment, dismissing the complaint, either before or after a trial, * * * does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment-roll, that it is rendered upon the merits.” In order that such a judgment may be a bar it must affirmatively appear that it was rendered on the merits. This section applies to a judgment whether rendered before any evidence was taken or after all was taken. In construing it the Court of Appeals said (Genet v. D. & H. Canal Co., 170 N. Y. 278, 280): “ It provides in effect, that the dismissal of the complaint, either before or after a trial, shall not have the effect of preventing a new action for the same cause of action, ‘ unless it (the judgment) expressly declares or it appears by the judgment roll that it is rendered upon the merits.’ ” And later in the same opinion it is said: “ The courts might perhaps conclude to take other proof of the fact were it not that the Legislature in its wisdom has seen fit to provide a clear-cut method by which the fact of the dismissal upon the merits may be established in a very simple way, namely, by expressly stating it in the judgment or causing the fact to appear in the judgment roll, * * The first sentence of section 482 is: “A final judgment dismissing the complaint before the close of the plaintiff’s evidence does not prevent a new action for the same cause of action, unless it expressly declares that it is rendered upon the merits.” This sentence does not mention the judgment roll and its application is limited to final judgments rendered before the close of the plaintiff’s evidence. Within its scope, it is similar to section 1209. But the second sentence of section
The determination of the trial court in this trial was based upon the construction of the insurance policy, as was the determination on the former trial; the court held that the contract was not valid because the proof showed there were misrepresentations made by the assured in procuring the policy. This seems, under section 482, directly a determination of the merits of the action. The dismissal was not stated to be “ without prejudice ” and that judgment, had it been pleaded, would be, a bar to this action on the same policy.
The question now seems to be whether or not the'Lormer judgment is conclusive evidence of the construction of the policy; the policy was part of the evidence at each trial. If not conclusive, we have the interesting result that, without an appeal, a plaintiff may bring as many actions and have as many trials as he has endurance to prosecute, when the controlling question in dispute is in the construction of a written instrument, and the defendant fails to plead the first judgment as a bar. Pleading a judgment does not prove it; it is the judgment roll received in evidence which furnishes the proof; and, having been received, the judgment is in the case for what it proves. The general rule, Which, so far as I can find, has always been accepted in our courts, is stated in Gardner v. Buckbee (3 Cow. 120, 126) as follows:1 “ The law is well settled, that the judgment of a court of concurrent jurisdiction, directly upon the point is, as a plea in bar, or evidence, conclusive between the same parties, upon the same matter directly in question in another court.” In Cromwell v. County of Sac (94 U. S. 351, 353) Mr. Justice Field quotes from an English case as follows: “ It is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery of itself in an action of trespass is only a bar to the future
In the record in this case we have the identical issue between the same parties decided with directly opposite results in two actions brought on the same insurance policy to recover for the same loss suffered by the same burglary; and that too when the first judgment was, under section 482 of the Civil Practice Act, “ a final determination of the merits of the cause.” It seems to me that the judgment at the first trial ought to be conclusive evidence against a recovery at the second trial. (Castle v. Noyes, 14 N. Y. 329.) Relief from that judgment could only be had by appeal or by motion to correct the judgment. I concur.
Hinman and McCann, JJ., concur; Cochrane, P. J., and H. T. Kellogg, J., concur in result.
Judgment and order reversed on the law and complaint dismissed, with costs.