McDonald v. Hygienic Ice & Refrigerating Co., 132 N.Y.S. 857

McDonald v. Hygienic Ice & Refrigerating Co.

132 N.Y.S. 857 | N.Y. App. Div. | 1911

Sewell, J.:

We are of the opinion that the trial court erred in holding that the judgment in question is a bar to a litigation of the question in this action. ■ It is well settled that it is not sufficient for a party who sets up a prior judgment as a bar or seeks *541to introduce it as conclusive evidence to produce a record showing a judicial determination of the questions litigated. He must further show that the judgment was rendered upon the merits. (Genet v. Delaware & Hudson Canal Co., 170 N. Y. 278; Rudd v. Cornell, 171 id. 114.)

In such a case it is necessary that the ground upon which the action proceeded to judgment should affirmatively appear either from the record itself or from extrinsic evidence. (Stowell v. Chamberlain, 60 N. Y. 272; Bell v. Merrifield, 109 id. 202.) If there be uncertainty as to whether or not the precise question was raised and passed upon in the former action the judgment is not conclusive. (Lewis v. Ocean Navigation & Pier Co., 125 N. Y. 348.)

The record of the prior suit, produced by the defendant, shows two judicial determinations, one the result of a motion, distinctly and expressly made, for a nonsuit, the other following it and purporting to be on the merits. It is difficult to understand how the court could, have dismissed the action on the merits after it had disposed of the case upon the motion for a nonsuit. It is not necessary, however, to rest our decision upon this proposition. It is a sufficient answer to the contention of the defendant that the judgment in question is a bar to say that the defendant failed to show which of the two different and distinct determinations in the record was actually made. There was, at least, an uncertainty as to whether the judgment was rendered on the merits or was a mere non-suit. Moreover, no extrinsic evidence was produced to rebut the presumption, from the face of the record, that the merits were not passed upon. In Clark v. Scovill (198 N. Y. 279) it was held that in determining whether a judgment is a bar, the judgment roll is the primary but not the exclusive guide, and when it appears therefrom that the judgment might have been rendered on the merits or upon a ground not involving the merits, the presumption is that it was not upon the merits, and the burden is upon the one claiming it is a bar to show by extrinsic evidence consistent with this judgment roll that it was in fact rendered on the merits. We think that the judgment invoked as a bar was, in legal effect, a mere nonsuit, and, therefore, it did not operate as an adjudication in favor *542of the defendant upon the questions litigated in that action. It follows that the judgment should he reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Smith, P. J., and Kellogg, J., dissenting.

Judgment reversed and new trial granted, with costs to appellant to abide event.