57 N.Y.S. 561 | N.Y. App. Div. | 1899
The action was brought to recover damages for the breach of a. written .contract of employment of the plaintiff by the defendant. It was dated July 10, 1896, and provided for the employment of the plaintiff for one year at. a weekly salary of fifteen dollars. The-plaintiff entered bn his. duties, but. was discharged, on October thirty-first. He recovered a judgment for fifteen dollars per week for thehnexpired term, less forty-five dollars for-the three weeks next after his,discharge... ' • j
The only question which we are called to consider arises! out. of an allegation .in the answer setting up as res adjudicata a judgment-for forty-five dollars recovered by the plaintiff against the defendant-in an action on the same contract in a Justice’s Court. Thh complaint in that action, after setting o.ut a copy of the contract, ¡alleged, that on October 31, 1896 : i
(1) “ The defendant, without any right or -without a ¡mutual, rescinding of .the aforesaid contract, refused and has not permitted, this plaintiff to continue his employment und'er said contract, jthotigh: the plaintiff then offered to continue such employment, and; is still willing to continue the samel .
- (2):“ That since said October 31, 1896, this plaintiff has j always-been ready to 'continué Ms employment with the defendant,! and is still willing and ready to perform the services required of him under said contract. j. - ■ .
(3) “ That since the refusal of the defendant to permit the plaintiff to continue the employment,.this plaintiff has endeavored to find, other employment, but without being able to obtain any. j
(4) “ That, there is due the plaintiff-from-the defendant forjand on. account of said contract aforesaid, the sum of forty-five dolíais ($45)‘ being the salary due the plaintiff, for the weeks ending Noyembér 7th, 14th and 21st, no -part of which has been paid,, although payment thereof has been demanded of the defendant, and he has-refused to pay the' same.” ■ - ■ j .
/ Ihconcluffed with a prayer for judgment for forty-five dollars, and Xfhe justice tendered-.a-judgment for that sum.
In Perry v. Dickerson (85 N. Y. 345) the opinion of the court,. Judge Andrews writing, contains the following (p. 347): “ To sustain the plea of a former judgment in bar of a second action, it must-appear that the cause of action in both suits is the same, or that some-fact essential to the maintenance of the second action was in issue and determined in the first action adversely to the plaintiff. In order to establish an identity between the causes of action in the-two suits, it is not necessary that the claim made in the first action embraced the same items sought to be recovered in the second. It is sufficient to bring the second action within the estoppel of the former judgment that the cause of action- in the former suit was the
As we see no escape from the conclusion that the former judgment constitutes a bar to the present action, the judgment must be neversed; and as the plaintiff can in no event recover, a final judgment must be entered for the defendant, with costs. (Husted v. Thomson, 158 N. Y. 328.)
All concurred.
Judgrnent reversed and' complaint dismissed, with costs.: