17 N.Y.S. 161 | N.Y. Sup. Ct. | 1891
Counsel for the appellant concedes the rule that every material question of law or fact involved in the issue in the former action must be regarded as determined by the final judgment in that action, and cannot be made the subject of judicial investigation in this case, but claims that the plaintiff in either case was but pursuing a remedy in the nature pf an action in rem; that the judgment sought in the respective actions was the determination of title to distinct and different parcels of land, and that therefore, as a necessary conclusion, the finding by the court that the plaintiff’s wife did not, between the 23d day of June, 1879, and the 3d day of February, 1883, embezzle large sums of money of the plaintiff, was not the determination of a
The gravamen of the complaint was the wrongful'taking of the money, and whether it was invested was immaterial so far as the right of action for the money was.concerned, and simply because the plaintiff sought to pursue the avails of the money wrongfully taken, as a means of restoration, instead of relying upon a judgment for damages, could not deprive the case of the fundamental elements upon which his right of action was based. Upon the theory that the moneys invested were his, an equity would be established in the land in his favor, as between him and the wrong-doer; and for the purpose of affording relief, as against the wrong-doer, the court by legal requirement would adjudge the title to be in him. The investment of the moneys by the plaintiff’s wife did not create a cause of action independent of the act of wrongful taking, and the allegation respecting the investment was immaterial, except for the purpose of reaching the property as a means of redressing the injury resulting from the wrongful taking of the money. It follows as a necessary result that the allegation of embezzlement was not only an indispensable fact to be alleged and proven to sustain the action for the recovery of the land, but was the foundation for the support of the judgment demanded. It was therefore one of the issues litigated by the parties upon the former trial, and is conclusive as a bar to this action, within the rule established by the case of Lorillard v. Clyde, 122 N. Y. 41, 25 N. E. Rep. 292, and the cases cited. It is there held that a defeated party is concluded from litigating the issues upon which a judgment upon the merits is rendered, and every other matter directly at issue by the pleadings which the defeated party might have litigated.
The conclusion reached necessarily disposes of the suggestion made by the learned counsel for the appellant that the only moneys in controversy in the former action were those invested in the purchase of the Thirty-Third Street property, and that therefore the judgment entered upon the finding that the defendant did not embezzle large sums of money does not preclude the plaintiff from showing that other moneys were embezzled by the defendant, and invested in lands on Bond street. The principal issue in either case being whether or not the defendant did embezzle large sums of sum, as the basis of his action, the finding by the court that the defendant did not embezzle large sums of money, and the judgment entered thereupon, becomes conclusive upon that issue, within the rule stated in the case cited,—that the defeated party is concluded by all the issues which might have been litigated; and we may assume that, had the plaintiff established the fact that the defendant did embezzle moneys of the plaintiff other than those in the Thirty-Third Street property, the court would have so found, and Uie judgment entered in the action upon such findings would have saved this action from the conclusive operation of that judgment. The judgment should be affirmed, with costs.
