Cuneo v. Freeman

Appellate Terms of the Supreme Court of New York

Cuneo v. Freeman

137 N.Y.S. 885

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 8, 1912

StatusPublished

This text of 137 N.Y.S. 885 (Cuneo v. Freeman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cuneo v. Freeman, 137 N.Y.S. 885 (N.Y. Ct. App. 1912).

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Opinion

SEABURY, J.

This action in replevin is brought to recover the possession of three taxicabs, originally the property of one Montani. The record presented by the return is very meager, and consists of certain concessions which the respective attorneys made. Erom the concessions it appears that the plaintiffs were the keepers of a garage in which Montani kept the taxicabs, and that they claim a lien upon the taxicabs.

[1] The defendants contend that the plaintiffs’ claim was determined adversely to them in an action by one Campiglia against Montani and these plaintiffs, in which Campiglia sought to foreclose a chattel mortgage which he held upon said taxicabs. These plaintiffs appeared in that action as defendants, and set up a claim that they had a garage keeper’s lien upon the taxicabs. The judg[886]*886ment^ which was entered in that case does not recite what disposition, if any, was made of plaintiffs’ claim, and we are unable from an inspection of the judgment to determine whether or not that judgment should be regarded as res adjudicata upon the plaintiffs’ present claim. If the stenographer’s minutes of the foreclosure action had been offered in evidence, it may be that it would enable us to determine whether or not the judgment rendered in that action is a bar to plaintiffs’ claim.

Upon the record before us, it seems that the plaintiffs had the actual possession of the'taxicabs, and that they were therefore in a position to assert their lien, unless they were barred from so doing by the judgment in foreclosure.

[2, 3] The burden of establishing that the former judgment is a bar is upon the defendants, and the judgment which was offered in evidence does not establish this fact.

As the defendants have not established that the judgment was res adjudicata, it follows that the judgment must be reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.

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SEABURY, J.

This action in replevin is brought to recover the possession of three taxicabs, originally the property of one Montani. The record presented by the return is very meager, and consists of certain concessions which the respective attorneys made. Erom the concessions it appears that the plaintiffs were the keepers of a garage in which Montani kept the taxicabs, and that they claim a lien upon the taxicabs.

[1] The defendants contend that the plaintiffs’ claim was determined adversely to them in an action by one Campiglia against Montani and these plaintiffs, in which Campiglia sought to foreclose a chattel mortgage which he held upon said taxicabs. These plaintiffs appeared in that action as defendants, and set up a claim that they had a garage keeper’s lien upon the taxicabs. The judg[886]*886ment^ which was entered in that case does not recite what disposition, if any, was made of plaintiffs’ claim, and we are unable from an inspection of the judgment to determine whether or not that judgment should be regarded as res adjudicata upon the plaintiffs’ present claim. If the stenographer’s minutes of the foreclosure action had been offered in evidence, it may be that it would enable us to determine whether or not the judgment rendered in that action is a bar to plaintiffs’ claim.

Upon the record before us, it seems that the plaintiffs had the actual possession of the'taxicabs, and that they were therefore in a position to assert their lien, unless they were barred from so doing by the judgment in foreclosure.

[2, 3] The burden of establishing that the former judgment is a bar is upon the defendants, and the judgment which was offered in evidence does not establish this fact.

As the defendants have not established that the judgment was res adjudicata, it follows that the judgment must be reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.

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Bluebook (online)

137 N.Y.S. 885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuneo-v-freeman-nyappterm-1912.