270 F. 93 | 2d Cir. | 1920
Before this action, plaintiff sued defendant in the courts of New York to recover for the same injuries and was defeated. Nauyalis v. Philadelphia, etc., Co., 170 App. Div. 500, 156 N. Y. Supp. 357; appeal dismissed 224 N. Y. 547, 120 N. E. 870. The sole question decided below and brought up by this writ is whether the adjudication in the, state courts constitutes a bar to the present proceeding.
Some question was made below as to whether the cause of action was the same. The method of statement in the present complaint varies from that in the earlier pleading, in that no effort was made in the
It has been held that section 1209, Code Civ. Proc., applies only to actions in equity. Niagara, etc., Co. v. Campbell Stores, 101 App. Div. 400, 92 N. Y. Supp. 208. Cf. Bail v. New York, etc., Co., 201 N. Y. 355, 94 N. E. 863. But these cases show, also, that where the error was in form only the error may be amended.
While we are of opinion, as just indicated, that the disposition of this matter of practice by the New York courts was entirely in accord with ruling decisions, we hold that, since the judgment roll put in evidence shows on its face that the state court disposed of-Nauyalis’ contention by granting a motion for a directed verdict, we are, on familiar principles, concluded by the judgment.
The New York judgment being a bar, the decision below was right, and is affirmed, with costs.