Figarra v. Saitta

91 N.Y.S. 728

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 17, 1905
• Status: Published

Opinion

DAVIS, J.

The plaintiff appeals from a judgment of the Municipal Court (Sixth District) rendered upon a verdict directed by the court in favor of defendant. The plaintiff brought the action for the sum of $46 as the owner of the claim by assignment from the firm of Ambroso & Borgia. The defendant claimed that the issues between the parties had been adjudicated in a prior action, and to sustain this contention he introduced in evidence a summons in an action -brought by Tomasa Borgia against Philip S. Saitta for $46, in which it appears by indorse-' ment on - the. summons that judgment was rendered for defendant against the plaintiff on the 24th of February, 1904, and prior to the bringing of the action at bar; and evidence was also introduced tending to show that the defendant and the claim in both actions were the same, and that Tomasa Borgia, the plaintiff in the prior action, was a member of the firm of Ambroso & Borgia, plaintiff’s assignor. The learned) court, being of opinion that- the matter in issue was res ad judicata, directed a verdict for the defendant, thus holding, in effect, that a judgment in an action for money brought against a defendant by a plaintiff individually is a bar to an action for the same claim against the same defendant brought by a copartnership of which the plaintiff' in the former action is a member. We think that the evidence fails to show that the judgment in the former action was an adjudication of the issues raised in the case at bar. The judgment to the effect that the defendant was not liable to Borgia individually for the sum of $46 did not include a finding that the defendant was not liable to Borgia’s firm upon the same demand. We are of opinion that the case should have been submitted to the jury.

Judgment reversed, and new trial granted, with costs to the appellant to abide the event. All concur.