Rosen v. Parking Garage, Inc.

40 Misc. 2d 178 | N.Y. City Civ. Ct. | 1963

Arthur Wachtel, J.

Motion pursuant to rule 107 (subd. 4) of the Rules of Civil Practice is granted. Heretofore, in an action commenced in the Small Claims Part of this court, the defendant was awarded judgment after trial before a Judge of this court. Immediately thereafter plaintiff commenced this action in the regular division of this court. It is contended by plaintiff that the rendition of judgment in the Small Claims division does not constitute res judicata so as to bar the present action, and in support thereof he cites section 157 of the New York City Civil Court Act as specifically permitting the institution of a new action. Section 157 provides as follows: “ Judgment obtained to be res adjudicata in certain cases. A judgment obtained under this article may be pleaded as res adjudicata only as to the amount involved in the particular action and shall not otherwise be deemed an adjudication of any fact at issue or found therein in any other action or court.” This indeed is the identical language formerly found in section 186 of the Municipal Court Code which has been construed to bar a subsequent action (see Supreme Burglar Alarm Corp. v. Mason, 204 Misc. 185). Mr. Justice Hofstadter said in Levins v. Bucholtz (App. Term, 1st Dept., 208 Misc. 597, 600, affd. 2 A D 2d 351): “ It is self-evident that the usefulness of this institution demands that in general finality attach to its pronouncements. In Supreme Burglar Alarm Corp. v. Mason (204 Misc. 185), this court rejected a strained construction of the provisions dealing with res judicata (§ 186), by which ferial in the Small Claims Part would have become a vain gesture, a prelude to a later trial elsewhere.”