65 N.Y.S. 101 | N.Y. App. Div. | 1900
The plaintiffs, real estate brokers, brought this action to recover ■ the last four installments mentioned in the following contract — a. balance alleged to be due them for services in leasing for the defendant certain real property:
“ New York, Oct. 28, ’95.
"1, the said M. J. Ward & Co., agree to accept the following payment, which shall be in full for commission, providing M. L. Sire.-leases the Stewart to R. A. Stranahan. Payment as follows :
“ $300 due when $ 5,000 Pd.
“ $300 “ “ $10,000 Pd.
“ $450 “ . “ $15,000.Pd.
“ $450 “ “ « • $20,000 Pd.
“$250 “ “ ' $25,000 Pd.
“$250 “ . $30,000 Pd.
“ I also further agree that no part of the without the said payments are made; $2,000 shall be duet
“ M. J. WARD.”
The Complaint alleged that in a prior action between the same-parties it- had been adjudged arid determined that the defendant made this Contract, with the plaintiffs, and that under it they were-entitled to receive from him the amount therein specified when he-had received from Stranahan the sum of $30,000* and that in the-prior action they had recovered the first two installments mentioned
—• over $10,000 and less than $15,000 having been then received'— and in this action thejr were entitled to recover c 1%gti.ptl?|§ii,[jpg,|p.l]-ments, he having received $30,000. ,m ni Imu nef sonriao Jwm-j oriT
The answer, among other thing, denied that the defendant was indebted to the plaintiffs in any sum whatever, or that $30,000 had been received from Stranahan, and it also alleged that the recovery and satisfaction of the judgment in the prior action was a satisfaction of the case of action set out in the complaint in this action.
The trial court held that the validity and construction of the contract referred to were settled and determined by the judgment in the prior action and that such construction was binding and conclu■sive not only upon the court but upon the parties in this action. That this ruling was correct cannot be seriously questioned. Numerous authorities might be cited to the effect that a judgment of a ■court of competent jurisdiction is final and conclusive, so long as it remains in force, between the parties as to all questions actually determined, as well as to those necessarily connected with the subject-matter of the litigation, either as .matter of claim or defense. (Pray v. Hegeman, 98 N. Y. 351; Jordan v. Van Epps, 85 id. 436 ; Smith v. Smith, 79 id. 634 ; Clemens v. Clemens, 37 id. 74 ; Sastle v. Noyes, 14 id. 329 ; Doty v. Brown, 4 id. 71.)
It is equally well settled that for the purpose of ascertaining what was in issue and determined by a formen judgment, the record of the former trial may be resorted to, and if this leaves the matter in doubt then paroi evidence of .that fact is admissible. (Campbell v. Rankin, 99 U. S. 261.)
The trial court, therefore, did not err in overruling the defendant’s objection and receiving this record ; but that record as such was only admissible for the purpose of establishing the contract; but whether it was proven that anything was due upon the contract ■depended upon the evidence offered upon the trial.
But it is urged by the respondents that the defendant testified upon the former trial — as appears from the record offered in evi■dence — that he had art that time received from Stranahan $30,000, and that this was sufficient to establish the allegations of the complaint on the trial of this action; But there is no force in this sug
It follows, therefore, that the court erred in directing a verdict for the plaintiffs ; and, for the error thus committed, the judgment appealed from must be reversed and a new trial granted, with costs to .appellant *to abide the event.
Patterson, Rhmsey and Ingraham, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.