Agate v. Richards

5 Bosw. 456

• Court: The Superior Court of New York City
• Decided: December 10, 1859
• Status: Published

Opinion

By the Court—Hoffman, J.

The defendant set up in his answer a former judgment recovered against him for the same demand by the same plaintiff. The whole question is as to the identity of person, and cause of action.

The parties, plaintiff and defendant, have the same names in each suit, and not names of very ordinary occurrence. The complaint in the first action asks for judgment in the sum of $72.50, with interest from the 1st of January, 1857. The complaint in the second action is in this respect the same. The summons in each action is, in this particular, also alike.

The complaint in the present suit states sales of linen shirts, silk cravats, suspenders, &c., between the 23d of May, 1855, and the 25th of December, 1856. The complaint, in the former action, states sales between the 9th of November, 1854; and the 24th of December, 1856, of shirts, hose, suspenders, &c., to the amount of $122.50, and then avers that the defendant remains indebted to the plaintiff in the sum of $72.50,-with interest from the 1st January, 1857, on account of said goods and merchandise.

We think that there was enough presented to raise a presumption of identity and support the answer. The plaintiff should have been driven to repel this presumption. (18 N. Y. R., 89.)

Judgment reversed, new trial ordered, costs to abide event.