Goddard v. Benson

15 Abb. Pr. 191

Opinion

By the Court.

*—Daly, F. J.

Where the Code allows a - supplemental answer, it necessarily allows what is incident to such a pleading, the right to demur to it. This was the rule before the Code, where a plea was put in pids darrien. (Abbot a. Rugerly, Freem., 252.)

The demurrer was well taken. The answer did not allege, nor show, a verdict and judgment upon the same subject-matter between the parties to this suit or their privies. The rule is, that the same point or question, when once litigated and settled by a verdict and judgment, shall not be again contested in any subsequent controversy between the same parties or their privies (Doty a. Brown, 4 N. Y., 71), and by privies are meant persons who are represented by the parties, and who claim under them, or in privity with them, who have mutual or suceessive relationship to the same right or thing (1 Greenl. Ev., §§ 189, 523). It does not appear from any thing in the supplemental answer, that the defendants in this suit stood in any such relation to Kempton, the plaintiff in the former action. It is not shown what that action was about. All that is averred is, that the plaintiffs in the present suit were defendants in the one brought by Kempton, and that they set up as defence to his suit, that they, as partners in business, delivered to Crosby and Benson, the defendants in the present action, a quantity of raw silk to be manufactured, and that the jury found and decided by their verdict that the present plaintiffs did not jointly, and as partners, deliver to Crosby and Benson silk to be manufactured as alleged. That would not exclude them from maintaining their present action against Crosby and Benson, unless it is made to appear that there existed that identity of interest between Kempton and the present defendants, in. the subject-matter, as would make the defence set up against him equally conclusive in their favor. This is not shown by the answer, and judgment, therefore, was properly given for the plaintiffs upon the demurrer.

The order made at special term must be affirmed.

Present, Daly, F. J., Hilton and Brady, JJ.