| N.Y. App. Div. | Jul 11, 1939
Lead Opinion
This court has previously held that a plaintiff who first brings action against the master for the negligent act of the servant and fails on the merits, may not bring a second action against the servant for the same negligent act. (Wolf v. Kenyon, 242 A.D. 116" court="N.Y. App. Div." date_filed="1934-07-06" href="https://app.midpage.ai/document/wolf-v-kenyon-5335475?utm_source=webapp" opinion_id="5335475">242 App. Div. 116.) That is the identical situation in the case at bar. This holding was based upon the rule that under the doctrine of res judicata an existing final judgment rendered upon the merits by a court of competent jurisdiction is conclusive of the rights of the parties and their privies in all other actions on the points in issue and adjudicated in the first suit. (See, also, Good Health Dairy Products Corp. v. Emery, 275 N.Y. 14" court="NY" date_filed="1937-07-13" href="https://app.midpage.ai/document/good-health-dairy-products-corp-v-emery-3598705?utm_source=webapp" opinion_id="3598705">275 N. Y. 14.) We are told, however, that the Court of Claims is not a court but is rather a tribunal for the audit and determination of claims against the State and a board or commission to pass upon State claims and not a court of law. With that statement I cannot agree.
Section 23 of article VI of the State Constitution provides that nothing in the Judiciary Article shall abridge the authority of the Legislature to create or abolish any board or court with jurisdiction to hear and audit or determine claims against the State. Section 2 of the Court of Claims Act provides that the Court of Claims shall
Thus we have a court of record which had jurisdiction by statute to hear and determine this same claim for damages when it was presented against the State. Further than that, the Court of Claims, acting in a judicial capacity, heard the claim and determined it upon the merits and rendered final judgment thereon. Findings of fact were also made by the Court of Claims. After that an appeal was taken to the Appellate Division of the Supreme Court, Third Judicial Department, and the judgment of the Court of Claims was there affirmed. (Jones v. State of New York, 256
The Court of Claims is something more than a mere auditing board. It is by statute given jurisdiction to act judicially and made subject to the same rule of liability as prevails in an action in the Supreme Court. This plaintiff has had his day in court on the issues of his own negligence and the negligence of the employees of the State and he is not now entitled to a second opportunity to try out the same questions exactly.
Our own court has once passed on these issues and its judgment likewise estops the plaintiff from asserting the same claim again. The decision and judgment of the Court of Claims are likened by our Presiding Justice to the action of a board of supervisors in auditing a claim against a county and he draws the conclusion that the claimant is in such action estopped from thereafter having his claim determined anew in court. Our court in Barber v. Town of New Scotland (64 A.D. 229" court="N.Y. App. Div." date_filed="1901-09-15" href="https://app.midpage.ai/document/barber-v-town-of-new-scotland-5190106?utm_source=webapp" opinion_id="5190106">64 App. Div. 229) held that where the plaintiffs had presented the same claim to the board of audit of a town and it was audited and allowed in a reduced amount, which audit was thereafter affirmed on certiorari by the Appellate Division (People ex rel. McMillen v. Vanderpoel, 35 A.D. 73" court="N.Y. App. Div." date_filed="1898-07-01" href="https://app.midpage.ai/document/people-ex-rel-mcmillen-v-vanderpoel-5185076?utm_source=webapp" opinion_id="5185076">35 App. Div. 73), that the plaintiffs had had their day in court, that the matter had once been determined by a competent tribunal and was res judicata.
The same rule applies to judgments of the United States Court of Claims.
“ The question, then, occurs as to the conclusiveness of the judgment in the Court of Claims. That court is -undoubtedly one of those which Congress has authority to establish. The Supreme Court of the United States has decided that it exercises the functions of a court of justice, and that its judgments are as final and conclusive as are those of its own when no appeal is taken therefrom. (United States v. O’Grady, 22 Wall. 647.) Now, it is a general principle of law that a judgment of a court having jurisdiction of the person and of the subject-matter is a final determination of all questions litigated in the cause, and of all questions which might be properly heard and decided upon the issue.” (United States v. Moore, 10 D. C. 226.)
This conclusion is in harmony with the text writers on the subject. For example, 2 Freeman on Judgments ([5thed.] § 633) says:
The appellant further urges that he is being deprived of a right to a jury trial which was not available to him in the Court of Claims. Of course, he could have begun the present action first and had that jury trial of these issues in Supreme Court; however, he made his election to pursue his remedy in the Court of Claims and is, therefore, bound by it.
The order and judgment should be affirmed, with costs.
Ceapser and Heffernan, JJ., concur; Hill, P. J., dissents, with an opinion.
Dissenting Opinion
(dissenting). Plaintiff-appellant appeals from an order granting judgment on the pleadings. The action was brought to recover damages alleged to have been caused by the negligence of the defendant, who was an employee of the State of New York in its highway maintenance department in charge of a group of men who were burning refuse and leaves, which caused a volume of dense smoke to obscure a much traveled highway (Route 20) for a considerable distance. The maintenance truck with a tar heating trailer attached, which was under defendant’s control, was parked upon the macadam portion of the highway within the zone of smoke and visible but a short distance. No warning by sign or otherwise was given indicating the obstruction. Appellant sustained serious injuries when his car collided with the tar heating trailer. He presented a claim for damages against the State in the Court of Claims, where it was determined that there was no liability, the court finding that the employees of the State were not negligent, and that defendant was. That judgment was affirmed by this court (256 A.D. 856" court="N.Y. App. Div." date_filed="1939-01-11" href="https://app.midpage.ai/document/people-ex-rel-stein-v-murphy-5357760?utm_source=webapp" opinion_id="5357760">256 App. Div. 856). Under quite similar circumstances, a railroad company has been held to be negligent when its employees kindled fires and the smoke obscured a portion of the nearby highway. (O’Connor v. New York Central Railroad Co., 280 N.Y. 532" court="NY" date_filed="1939-02-21" href="https://app.midpage.ai/document/oconnor-v-new-york-central-railroad-company-3576887?utm_source=webapp" opinion_id="3576887">280 N. Y. 532.)
The decision appealed from was made upon the theory that the judgment of the Court of Claims was res judicata, the defendant being an employee and privy of the State, and that the issues sought to be raised in this action were litigated there, as the alleged liability of the State arose under the doctrine of respondeat superior and solely on account of the negligence of this defendant, its employee. Under the authority of Good Health Dairy Products Corp. v. Emery (275 N.Y. 14" court="NY" date_filed="1937-07-13" href="https://app.midpage.ai/document/good-health-dairy-products-corp-v-emery-3598705?utm_source=webapp" opinion_id="3598705">275 N. Y. 14) and numerous earlier decisions, it is
The Court of Claims has no jurisdiction except in connection with claims against the State. It may not consider even a counterclaim asserted by the State against a claimant. Its origin, history and jurisdiction are recounted in People ex rel. Swift v. Luce (204 N.Y. 478" court="NY" date_filed="1912-02-27" href="https://app.midpage.ai/document/people-ex-rel-swift-v--luce-3601865?utm_source=webapp" opinion_id="3601865">204 N. Y. 478) in connection with the decision involving the constitutionality of chapter 856 of the Laws of 1911 by which the Court of Claims was abolished, and incidentally the tenure of the then judges terminated, and the Board of Claims created. It was there decided that the judges were not judicial officers, removable only upon the recommendation of the Governor with the concurrence of two-thirds of the members of the Senate, under section 11 of the then article 6 of the Constitution. The opinion in discussing the question states: “We are of the opinion that the section [section 11 of article 6 as it existed in 1912] does not apply. It cannot be extended so as to include any but judges of courts of law. There are many quasi-judicial officers in the State as to whom there is no pretense that they fall within the constitutional provision. The canal appraisers were such, as were the members of the board of audit. So also are the public service commissions [citation], the members of town boards of audit, supervisors acting as members of a board of audit of claims against a county, assessors and tax commissioners. The question is, therefore, whether the Court of Claims — so denominated by the Legislature — was in reality a court within the constitutional provisions, or only an auditing board and a quasi-judicial body. We think it was the latter. The Legislature was without power to create a new court with State-wide jurisdiction.” Discussing an attempt by the Legislature to grant general jurisdiction to city courts, the opinion continues: “ Despite this broad language, it was held that the Legislature could not confer upon these courts jurisdiction throughout the State, as that would trench upon the powers and jurisdiction of the Supreme Court. (Landers v. Staten Island R. R. Co., 53 N.Y. 450" court="NY" date_filed="1873-09-30" href="https://app.midpage.ai/document/landers-v--staten-island-rr-co-3611180?utm_source=webapp" opinion_id="3611180">53 N. Y. 450; People ex rel. Ryan v. Green, 58 id. 295.)” (Pp. 486, 487.) Chief Judge Cullen wrote the opinion in the Luce case before the present article 6 of the Con
The issue in this case was triable by a jury (Civ. Prac. Act, § 425, subd. 1); this could only be waived as prescribed by law (Id. § 426). The filing of a claim against the State was not a waiver. The issues presented in the derivative claim against the State were not tried before a jury, but were considered by a tribunal with power to audit. The attempt by appellant to recover against respondent’s employer in the only forum in which the sovereign consents to appear does not preclude his right to seek relief against this private defendant in a constitutional court of general jurisdiction and before a jury.
Sturman v. New York Central R. R. Co. (280 N.Y. 57" court="NY" date_filed="1939-02-28" href="https://app.midpage.ai/document/sturman-v-new-york-central-rr-co-3596645?utm_source=webapp" opinion_id="3596645">280 N. Y. 57) does not involve the exact issue here presented, as the State and the railroad company were not privies, but it exemplifies that findings made in
Assuming that there is merit in plaintiff-appellant’s cause, he had a right, under the common law, to recover against the defendant-respondent and against the State as employer. Because of the State’s sovereignty it could not be sued in the law courts. This did not affect plaintiff’s right but only his remedy. Formerly his only remedy against the State was by an act of the Legislature. Had the Legislature refused to make money available, and approve his claim by appropriate legislation, could it be said that the refusal of the Legislature to act was res judicata as to the right to seek a remedy against defendant in a court of law. The Court of Claims performs the functions and has the jurisdiction formerly exercised by the Legislature. Its audit and rejection of a claim should have no determinative effect as to an action pending in the law courts between these private parties.
The order and judgment should be reversed on the law, with costs, and defendant permitted to plead.
Order and judgment affirmed, with costs.