240 A.D. 710 | N.Y. App. Div. | 1933
Order in so far as it dismisses the first and third causes of action, and the judgment entered thereon, unanimously affirmed, with ten dollars costs and disbursements. We agree with the learned court at Special Term that the first cause of action was properly dismissed on the ground that there was a single cause of action for the recovery of 114,000 rubles. The action tried in the Federal court on a part of the demand was determined on the merits, and the verdict for the defendant was based on the fact that the rubles were worthless. There was no question in that case that the plaintiff could recover only nominal damages. The rule in respect to damages in the Federal court and the law of the case make unavailing the argument now advanced, obviously as an afterthought, that there has been no trial because plaintiff was entitled to nominal damages only. The judgment in favor of the defendant was affirmed on appeal (Tillman v. Russo-Asiatic Bank, 51 F. [2d] 1023); and we think that decision is res judicata in respect to the plaintiff’s right to recover on the first cause of action. The third cause of action was brought on a claim that was assigned to plaintiff after the action had been commenced. It may form the basis of a new action, but may not be added in the existing action by an amendment to the complaint. Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.
