189 N.Y. 84 | NY | 1907
In 1902 the defendant and one Seaman were partners engaged in business in Jersey City. They occupied for the purpose of their business two buildings, one a three-story frame building used as a bagging factory, and the other an iron-covered warehouse used for storage purposes.
On June 4, 1902, the plaintiff issued to said firm a policy of insurance in the standard form of this state which purported to insure them against loss or damage by fire, to the extent of $1,500 for one year on merchandise as in the policy described, "Contained in frame and iron building and additions and extensions thereto and on or under sidewalks adjoining situate on the south side of Gilchrist street about fifty feet west of Monmouth street, Jersey City, N.J."
The intention of the parties was to insure such merchandise while contained in the "iron-covered warehouse situated on south side of Gilchrist street, about 150 feet west of Monmouth street, used for storage purposes." The policy of insurance, by reason of a mutual mistake, did not correctly describe the building in which the merchandise insured was contained, and it did not conform to the contract of insurance. The contract of insurance did not cover and was not intended by the parties to cover or insure the stock of merchandise contained in the frame building used as a bagging factory.
On December 9th, 1902, the bagging factory, building and contents were destroyed by fire. The said Seaman duly assigned all his right, title and interest in the said policy to the defendant. The record discloses that thereafter and before the commencement of this action the defendant brought an action against the plaintiff upon said policy of insurance to recover the amount of the loss and damage to the contents of *87 the said bagging factory. To such action the plaintiff herein interposed as an equitable defense the mutual mistake of the parties in describing the real property in which the merchandise intended to be insured was contained, and asked that the policy be reformed, and that the complaint of the plaintiff in that action be dismissed.
The appellant concedes that the defendant in that action endeavored to obtain a trial of the issues therein at a Special Term, and that he objected thereto because the facts alleged in the answer were interposed only as an equitable defense and not as a counterclaim. The court granted the motion of the appellant herein to strike the case from the Special Term calendar "without prejudice to the defendant to apply to the court to amend its answer by setting up a counterclaim."
The plaintiff herein then brought this action to reform said policy and the defendant, as an answer thereto, alleges the pendency of the action brought by him against the plaintiff to recover on the policy, and he asks that the plaintiff's complaint be dismissed. This action was tried at a Special Term and judgment was rendered in favor of the defendant reforming the policy without awarding any costs. An appeal was taken therefrom to the Appellate Division, where the judgment was unanimously affirmed, and from such judgment of affirmance the appeal is taken to this court. The only question discussed before this court is whether the pendency of the said action brought by the defendant against the plaintiff is a bar to this action.
The defense of another action pending between the same parties for the same cause was formerly called a plea in abatement. It is a plea that is allowed to prevent a person from being harassed and annoyed by unnecessary actions. It is primarily applicable to a case where more than one action is brought by the same plaintiff against the same defendant for the same, or substantially the same, relief and growing out of the same subject-matter. It is a dilatory plea, technical in its nature, and a person interposing it must clearly show himself within the reason for its enforcement. Such a plea is not sustained *88 where full relief cannot be obtained in the first action. The actions now under consideration are not by the same plaintiff, but although between the same parties their relations are reversed. The actions are not for the same thing. One is a legal action to recover on a contract, and the other is an equitable action to reform the contract itself. The purpose of the actions is entirely different and the relief demanded antagonistic and inconsistent. A judgment in favor of the plaintiff in the first action would be a bar to the plaintiff in this action. A judgment in favor of the plaintiff in this action would not only be a bar to the plaintiff in the first action, but it would give to the plaintiff additional and further affirmative relief. If the plaintiff in the first action failed to prosecute the same or if his complaint was dismissed for reasons other than those stated in the equitable defense, the policy of insurance would remain unreformed. Unless the answer is amended, therefore, full relief to the defendant herein cannot be obtained in the first action. The defendant in this action assumes that the plea of another action pending is sustained if it is possible for the plaintiff to obtain full relief in the action first commenced, and that the plaintiff in this action should be compelled to so form his pleading in the first action as to obtain full relief therein.
The binding force of a judgment and the difference in the meaning of the terms "cause of action" and "subject-matter" are well stated by SUTHERLAND, J., in Tyler v. Standard Wine Co. (
"Of course, where two actions are brought concerning the same subject-matter, and in both suits the same question is necessarily involved, either singly or in connection with other *89 matters not involved in both, and a judgment is duly rendered in one of the actions upon the question common to both suits, that judgment becomes at once and forever decisive as to that question in the other litigation between the same parties; and the date of the commencement of the actions respectively is of no consequence as to the effect of the judgment as res adjudicata. If the judgment is first rendered in the later suit, it will control necessarily the determination of the same question in the prior action when that is brought to trial; but, until one action proceeds to judgment, the pendency of the other cannot be set up as a defense, unless the second suit is for the same cause of action as the first."
When a judgment is once obtained it is conclusive, not only of the issues actually litigated in the action, but also of any matter necessarily comprehended and involved therein although the same was not litigated. (Honsinger v. Union Carriage GearCo.,
Until judgment is rendered in an action there is nothing determined between the parties and nothing to prevent either party from taking such further or other action relating to his claimed rights and equities as he may feel inclined, except that he shall not unnecessarily harass and annoy the other party to the suit already commenced.
In Brown v. Gallaudet (
In the Supreme Court the question now considered has frequently arisen. Carlin v. Richardson (17 N.Y.S.R. 399) was an action brought to recover a balance due upon a contract to furnish certain plans and specifications. The defendant had previously brought an action against the plaintiff to recover from him certain moneys which he had paid on account of said contract, alleging in the complaint that by reason of the breach of the contract by the defendant and his failure to furnish the plans and specifications as provided thereby he was entitled to repayment of said moneys. It was held that the defendant in that action was not bound to plead the amount claimed by him to be due upon the contract or to ask for an affirmative judgment therefor. It was further held that he might do so or he could resort to a cross action to recover them. (See Tyler v. Standard Wine Co.,supra; Inslee v. Hampton, 8 Hun, 230.)
In McGrath v. Maxwell (
"The defense of a prior action pending is not made out by showing that a judgment in the prior action in favor of the plaintiff therein would bar the bringing of a new action by the defendant therein for a claim in his favor. It must further appear that a judgment therein in favor of the defendant therein, even if it were only a dismissal of the complaint on the merits, would be a bar to such new action by defendant. It is optional with the defendant whether he will set up a counterclaim or bring a cross action therefor." (Consolidated Fruit Jar Co. v.Wisner,
In Ogden v. Pioneer Iron Works (
The plaintiff in this action did not seek to enjoin the defendant from proceeding in the first action. The question involved is not dependent upon the right of the plaintiff to obtain affirmative, injunctive relief, but it rests wholly upon the legal right of the defendant in the first action to bring an independent action against the plaintiff therein for a cause of action entirely different from the one alleged in the plaintiff's complaint therein, although it relates to the same subject-matter.
We think the defendant failed to establish that there was another action pending between the same parties for the same cause.
In Bartholomay Brewing Co. v. Haley (
As we have already stated, a former judgment between the parties is an absolute bar to all issues actually litigated in the action or necessarily comprehended and involved therein, *93 although not litigated, while a former action pending is only a bar when it is between the same parties for the same cause.
The action of the brewing company against Haley was not for the same cause as the former action brought by Haley against the company but for an entirely different and antagonistic purpose, and the decision therein dismissing the plaintiff's complaint is disapproved and the authority thereof overruled.
The judgment should be affirmed, with costs.
CULLEN, Ch. J., GRAY, O'BRIEN, VANN and WERNER, JJ., concur; WILLARD BARTLETT, J., not sitting.
Judgment affirmed.