In re Roberts

17 N.Y. Sup. Ct. 253

• Court: New York Supreme Court
• Decided: March 15, 1877
• Status: Published

Opinion

Brady, J.:

Several preliminary objections were presented at the hearing herein, many of which are not sustained by the proofs. It was shown, however, without objection, and remained without answer, that the petitioner presented a similar application to one of the judges of the Court of Common Pleas, which was fully heard and decided against him on the merits, and which decision remained in all respects undisturbed. The respondent invokes thereupon the doctrine of res adgudicata, and, if it be applicablé, the order appealed from' must be affirmed.

The authorities are to the effect that if the same proceeding be renewed, whether it be in the form of an action or summary or special proceeding, which has been once adjudicated upon the merits, such result is a bar to any further proceeding .of a similar character. Demarest v. Darg, 32 N. Y. Rep., 281; White v. Coatsworth, 6 id., 137; Yonkers and New York Fire Insurance Co. v. Bishop, 1 Daly, 449; Powers v. Witty, 42 How. P. R., 352; People ex rel. Lodowick v. Akim, 4 Hill, 606.)

The principle stated is a complete answer to the proceeding. It would not be in harmony with the doctrine of res adyudieata to permit such applications to be renewed as soon as decided against the' insolvent, and thus continued from one judge to another, ad i/nfiwit/wm. The insolvent on such applications is given full opportunity to expose his case fully to the judicial mind, and the insolvent herein seems to have had such a freedom in the Court of Common Pleas.

The order appealed from must be affirmed, with ten dollars costs and the disbursements of the appeal.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.