14 N.Y.S. 420 | N.Y. Sup. Ct. | 1891
The question arising on this demurrer is whether the defense set up in the sixth subdivision of the answer of the defendant Catherine Taylor is good as a bar to the present action.- The material allegations of the complaint are that between June 20, 1879, and February 3, 1883, the plaintiff was engaged in the business of keeping and managing an hotel and restaurant in the city of New York and accumulated a large sum of money, and that during that period the defendant Catherine Taylor, his wife, took from the safe in which the plaintiff deposited his moneys a large sum, to-wit, about $40,000, without the knowledge or consent oí the plaintiff, and with $16,000 of the money thus embezzled purchased the property mentioned in the complaint and caused it to be conveyed to her co-defendant; and by this suit plaintiff seeks to have the property thus purchased with the alleged abstracted money declared to be his, and to require a conveyance of it to him. Among other defenses, the one to which this demurrer applies sets up that in another action between.this plaintiff and the defendant Catherine Taylor and another defendant, and in which precisely the same relief was asked as to another piece of real estate, a judgment was rendered after trial, and in the findings of the court if was held and adjudged that the defendant Catherine Taylor had not abstracted, during the period of time stated in the complaint in this action, any moneys belonging to the plaintiff. There is no doubt that in the former suit the same allegation was made respecting the alleged embezzlement by the wife, and that there is no difference whatever either as to amounts or time connected with this alleged abstraction." The question, therefore, is this: It having been found in the former action that the defendant Catherine Taylor did not abstract moneys of the plaintiff as charged in the complaints in both actions, is the prior judgment, based upon that finding, res adjudicata, and a bar to a subsequent suit in which another piece of property was involved? The general rule respecting the bar of a prior judgment has found its last formulation in the case of Lorillard v. Clyde, 122 N.