MARTIN, J.
It becomes obvious from a review of the proceedings in this action that the special term awarded the judgment herein upon the grounds that the plaintiff could not maintain this action on the theory that a trust was created by a delivery to T. 0. & W. Gilchrist of the check in question, and the agreement under which it was delivered, and that the judgment entered in the proceeding between the parties, under the statute relating to claims against the estate of deceased persons, was a bar to this action, so far as it was based upon the claim that the estate represented by the defendant was indebted to her or the estate she represented for the money received by the defendant’s testator or by the firm of which he was the surviving partner. It follows, therefore, that the judgment should be reversed, unless it can be sustained upon those grounds. Thus, we are led first to the consideration of the question whether this action can be maintained on the ground that the money in- question was placed in the hands of the firm of T. C. & W. Gilchrist by William Gilchrist, Sr., in trust to be accounted for at the death of Betsey Gilchrist. It is essential to constitute a valid trust that the instrument or agreement by which it is sought to be created should show a sufficient intention to create a trust, and a beneficiary that is named or can be ascertained. 4 Kent, Comm. (11th Ed.) p. 305, note 2. This doctrine seems to be recognized, if not affirmed, in Gilman v. McArdle, 99 N. Y. 458, 2 [614] N. E. 464. In Holland v. Alcock, 108 N. Y. 312, 318, 16 N. E. 305, Rapallo, J., said:
“The absence of a defined beneficiary is, as a general rule, a fatal objection to any attempt to create a valid trust. It is said by Wright, J., in Levy v. Levy, 33 N. Y. 107, that ‘if there is a single postulate of the common law established by an unbroken line of decision, it is that a trust without a certain beneficiary, who can claim its enforcement, -is void, whether good or bad, wise or unwise.’ ”
The same doctrine was held in Fosdick v. Town of Hempstead, 125 N. Y. 581, 591, 26 N. E. 801, where the Holland Case was cited, and Peckham, J., said that the opinion of Rapallo, J., in that case left nothing to be added on that subject, and that “that case leaves the doctrine no longer in doubt that to constitute a valid trust there must be a defined beneficiary, and the absence of such is, as a general rule, fatal to the validity of a testamentary trust.” See, also, Tilden v. Green, 130 N. Y. 29, 28 N. E. 880. Hence it would seem that the allegations of the complaint were insufficient to sustain a recovery upon the theory of a trust.
Moreover, if, as claimed by the plaintiff, there was an express trust created by the deposit of the check in question, or the money received thereon, it would not descend to the next of kin or personal representatives of the trustee, but upon his death would vest in the supreme court, under chapter 185 of the Laws of 1882, which provides:
“Upon the death of a surviving trustee of an express trust, the trust estate shall not descend to his next of kin or personal representatives, but the trust, if unexecuted, shall vest in the supreme court, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose under the direction of the court But no person shall be appointed to execute said trust until the beneficiary thereof shall have been brought into court by such notice and in such manner as the court may direct.”
. It follows, we think, that if a valid trust had been created, under this statute the trust estate would not descend to or vest in the plaintiff, but would vest in the supreme court; that a new trustee should have been appointed, who alone could have maintained an action (In re Waring, 99 N. Y. 114, 1 N. E. 310; In re Carpenter, 131 N. Y. 86, 29 N. E. 1005); and that the special term correctly held that the plaintiff could not maintain this action on the ground that a trust was created.
This brings us to an examination of the question whether the proceedings instituted under the statute by the plaintiff against the defendant, for the enforcement of the claim made therein, were a bar to this action, if regarded as an action to recover the moneys in question, independent of the claim that it was delivered to the firm of T. C. & W. Gilchrist in trust. The proceeding which resulted in the judgment which the court held was a bar to this action was instituted under and in pursuance of the provisions of sections 35, 36, and 37 of article 2, tit. 3, c. 6, pt. 2, Rev. St. It is provided by section 37 that where the justice of a claim presented is doubted, and a reference is had, the judgment of the court, upon the confirmation of the report of a referee therein, shall be valid [615] and effectual in all respects as if the same had been rendered in a suit commenced by the ordinary process. Therefore, under the provisions of the statute, the former judgment between these parties had the same binding effect, and is to be treated in all essential respects the same, as though it had been entered in an ordinary action. The parties to the former action or proceeding were the same as in the case at bar. It was instituted to recover the same moneys which were sought to be recovered in this action. The only pretended difference between the former proceeding and this action is that the original action or proceeding was sought to be maintained, and the debt in question recovered, upon proof that the defendant’s testator was individually liable therefor by reason of his having received the money in question, while this action is sought to be maintained upon proof that he was liable as surviving partner of the firm of T. C. & W. G-ilchrist. As we have seen, the report of the referee, which is a part of the judgment roll in the former proceeding, discloses that it was tried upon the theory that the claim there sought to be recovered was a liability incurred to the plaintiff’s testator by Truman 0. G-ilchrist individually, and not by the firm of which he was a member. From this finding of the referee it must, I think, be assumed that upon the former trial the plaintiff did not, in fact, attempt to prove any liability against the defendant upon the ground that her testator was the surviving partner of the firm of T. 0. & W. Gilchrist, and as such liable for the debt in question. That upon such trial the plaintiff might have proved a cause of action against the defendant, upon the theory of her testator’s liability as surviving partner, there can, I think, be no doubt. In Nehrboss v. Bliss, 88 N. Y. 600, 604, where the question of the rights of a surviving partner was discussed, it was in effect said that, upon the death of a partner, the legal right under the firm contracts or causes of action, and the sole right to collect the partnership debts, remained in the survivor (Yin. Abr. “Partners,” D; 1 Lindl. Partn. p. 505; Voorhis v. Child’s Ex’r, 17 N. Y. 354), 'and vested so effectually that upon his death it would have devolved upon his personal representative, who alone could sue upon it (1 Williams, Ex’rs, 1585; Copes v. Fultz, 1 Smedes & M. 623); that in such a case the right of action would so completely vest in the survivor that a demand against him in his own right might have been set off in diminution of his claim as surviving partner (Slipper v. Stidstone, 5 Term. B. 493); that a debt due from the plaintiff as surviving partner to the defendant might be set off against a debt due from the defendant to the plaintiff in his own right (French v. Andrade, 6 Term R. 582); that as surviving partner he might join in one action a count for a debt due him in his own right and one due him as survivor (Adams v. Hackett, 27 N. H. 289); and that a plaintiff, in an action charging him in his own right, might recover a demand due from him individually, and another due from him as surviving partner (Richards v. Heather, 1 Barn. & Ald. 29). In the Bichards Case, it was expressly held by the court of king’s bench, that “under a declaration containing only one set of counts, charging the defendant in his own right, the plaintiff may recover [616] one demand due from the defendant individually, and another due from him as surviving partner.” In Ferris v. Burrows, 34 Hun, 104, it was held that, upon the judicial settlement of his accounts, an executor was entitled to set off against a legacy a debt due to the testator from a firm of which the legatee was, at the time of the death of the testator, the sole surviving partner. This case was affirmed in 99 N. Y. 616. In Miller v. Bank, 1 Paige, 444, Chancellor Walworth said:
“Thus, a surviving partner is, in equity, only a trustee for himself and the representatives of the deceased partner. Yet he may sue or be sued in his own name, and debts due to or from him in his own right may be offset against debts due to or from him as surviving partner.’’
In Goelet v. McKinstry, 1 Johns. Gas. 405, it was held that if one of two partners in trade purchase goods for both, and one of them dies, an action of indebitatus assumpsit may be brought against the survivor, without taking notice of the partnership or the death of one and the survivorship of the other.
In Hyat v. Hare, Comb. 383, Holt, C. J., said:
“If there be two partners in trade, arid one of them buy goods for them both, and the other dieth, the survivor may be charged by indebitatus assumpsit generally, without taking notice of the partnership, or that the other is dead and he survived.”
The doctrine of these authorities renders it obvious that the plaintiff could have proved on the former trial a cause of action, and recovered in that proceeding against the defendant, as the representative of the surviving partner of the firm of T. C. & W. Gilchrist, under her claim as presented, unless it had been paid or released. Thus the precise question to be determined is whether, as the right of recovery now insisted upon by the plaintiff could have been litigated and determined upon the former trial, the judgment in that case was a bar to a second action. The rule seems to be well settled in this state that a former judgment of a court of competent jurisdiction is final and conclusive between the parties, not only as to the matters actually determined, but also as to every other matter which the parties might have litigated and had decided, essentially connected with the subject-matter of the litigation, within the purview of the original action, either as matter of claim or defense. Embury v. Conner, 3 N. Y. 511, 522; Doty v. Brown, 4 N. Y, 71; Clemens v. Clemens, 37 N. Y. 59, 74; Dunham v. Bower, 77 N. Y. 76, 79; Smith v. Smith, 79 N. Y. 634; Jordan v. Van Epps, 85 N. Y. 427, 436; Patrick v. Shaffer, 94 N. Y. 423, 430; Pray v. Hegeman, 98 N. Y. 351, 358; Griffin v. Railroad Co., 102 N. Y. 449, 452, 7 N. E. 735; Goebel v. Iffla, 111 N. Y. 170, 177, 18 N. E. 649; Manufacturing Co. v. Walker, 114 N. Y. 7, 12, 20 N. E. 625; Lorillard v. Clyde, 122 N. Y. 41, 47, 25 N. E. 292. In the Embury Case, Jewett, J., said:
“That the judgment or decree of a court possessing competent jurisdiction is, as a general rule, final, not only as to the subject-matter thereby actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided, can admit of no doubt. The general rule is that an allegation on record, upon which issue has been once taken and found, and a judgment has been rendered, is, between the parties taking it and their privies, conclusive, according to the finding thereof, [617] so as to estop the parties, respectively, from again litigating that fact once so tried and found, whether it is plead in bar or given in evidence.”
In the Clemens Case, the court cited and approved of the rule laid down by Judge Hogeboom in Harris v. Harris, 36 Barb. 88, which was:
“The general rule on this subject is well known to be that a former judgment of the same court, or of a court of competent jurisdiction, directly upon the point in issue, is, as a plea in bar or as evidence, conclusive between the same parties, or others claiming under them, upon the same matter directly in question, in a subsequent action or proceeding. Such judgment or adjudication is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have been litigating, and have had decided, as incident to, or essentially connected with, the subject-matter of the litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and of defense.”
In the Dunham Case it was held that a judgment in favor of a carrier, in an action by him to recover freight, was a bar to an action by the owner of the goods shipped to recover damages for the destruction of the property, caused by a failure on the part of the carrier to perform his contract of transportation:
In the Smith Case it was held that an estoppel by judgment in a former action arises when the same matter was at issue therein, and was either litigated by the parties and determined, or might have been litigated, and a decision had upon it; and that it was not necessary that it should appear by the record of the prior suit that the particular controversy sought to be precluded was then necessarily tried and determined, but it was sufficient if there might have been judgment in the first action for the same cause alleged in the second.
In Jordan v. Van Epps, which was an action by the plaintiff for dower in certain land, and there had been a former action of partition, to which she was made a party, and in the complaint in which action it was alleged that she claimed an inchoate right of dower in the premises, wherein she did not appear, and the final judgment made no provision for dower, it was held that the judgment in the partition suit was a bar; that she should have presented her claim in some form in that action; and, having failed to do so, could not in another action claim that she was unlawfully deprived of her dower rights.
In Pray v. Hegeman it was held that it was not necessary to the conclusiveness of a former judgment that issue should have been taken upon the precise point controverted in the second action; that subordinate rights or questions, which are branches of a larger right or question put in issue, and which, under the pleadings in a former action, might have been decided, and as to which relief might have been granted, although the principal or main relief was denied, are conclusively determined by a judgment therein upon the merits denying all relief.
In the Lorillard Case it was held that a judgment rendered on the merits is coextensive with the issues upon which it is founded, and is conclusive between the parties thereto, not only as to the matters [618] actually proved and submitted for decision, but also as to every other matter directly at issue by the pleadings which the defeated party might have litigated, and that testimony is incompetent which merely tends to show that a party omitted to produce upon the former trial all the evidence that was admissible in his behalf.
The appellant, however, has called our attention to the case of Rose v. Hawley, 141 N. Y. 366, 36 N. E. 335, as an authority for the proposition that, "to constitute a bar, the [plaintiff’s] claim should have been presented to defendant as the representative of the survivor of the firm.” In the case cited it was held that, where a cause of action was imperfect when the action was brought, a judgment therein was not a bar to a subsequent action. While the doctrine of that case must be recognized as correct, it has no application here.
He also cites the cases of House v. Lockwood, 137 N. Y. 259, 33 N. E. 595, and Belden v. State, 103 N. Y. 1, 8 N. E. 363, as sustaining the doctrine that “a judgment does not operate as an estoppel between the same parties, except where the facts litigated and decided have such relation to. the issue that their determination was necessary to the determination of that issue; that is, the facts may be used to establish another issue without destroying the right of action thereon.” Those cases hold that "a judgment does not operate as an estoppel, in a subsequent action between the parties, as to immaterial or unessential facts, even though put in issue by the pleadings and directly decided. But it is final as to every fact litigated and decided therein having such a relation to the issue that its determination was necessary to the determination of the issue. Whenever the same question arises between the parties, in whatever form of action, and whether involved directly or collaterally, they are forever precluded from averring and proving the fact to be otherwise.” Assuming, as we do, the correctness of the principle decided by the cases cited, we think it does not affect this case, as no such question is here involved. The issue in the first case, as well as in this, was whether the defendant, as the personal representative of Truman 0. Gilchrist, was indebted to the plaintiff or the estate represented by her for the money in question. If the defendant was liable as the representative of Truman C. Gilchrist, it was only because he was individually liable for the debt in suit. The issue was the same in both cases, and if the estate represented by the defendant was liable, either by reason of her testator’s having received the money as an individual, or by reason of his having become individually liable as the surviving partner of the firm of which.he was a member, neither of those facts, if it existed, can be said to be immaterial or unessential. If either existed, proof of it was necessary to a determination of the issue between the parties. At most, the case here presented is one where the proof existed by which it is claimed that the debt against the defendant could be established, but the plaintiff failed to introduce it on the former trial.
Again, the appellant cites the case of Collins v. Hydorn, 135 N. Y. 320, 32 N. E. 69, as sustaining the principle that, “while the admissions show the persons to be the same, the first claim was litigated [619] as a personal one in the proceedings, and the referee was not asked to pass upon the claim as against the copartnership. Here the claim was charged as a firm liability, and the defendant is sought to be charged as the representative of the survivor of the firm.” The case cited holds that a former judgment concludes a party only in the character in which he is sued. That the parties to this action sued and were sued in the same capacity as they appeared in the former proceeding is undisputed. Hence it is difficult to perceive how the doctrine of the case is applicable.
The appellant likewise refers to the cases of Dickinson v. Price, (Sup.) 18 N. Y. Supp. 801; Zoeller v. Riley, 100 N. Y. 102, 2 N. E. 388; and Lewis v. Pier Co., 125 N. Y. 341, 26 N. E. 301,—as sustaining his claim that the former judgment was not a bar to this action. In the Dickinson Case, which was an action brought to recover damages for the alleged illegal discharge of the plaintiff by the defendant, his employer, it appeared that, as an inducement to the plaintiff to enter his service for a period of one year, the defendant agreed to let him have a certain house at seven dollars a month. After his discharge the plaintiff continued to occupy the house, until, about two months later, the defendant began summary proceedings against the plaintiff, who put in an answer denying any indebtedness for rent, setting up the contract for services, and that under it he was to have the house for a year at seven dollars a month; that the contract had not expired; that he had been improperly discharged, and that the defendant had agreed to take his rent from the plaintiff’s earnings, which were payable weekly. On the trial of the summary proceedings, the plaintiff did not appear, and the defendant took judgment by default for one month’s rent. An action was subsequently brought to recover damages for the discharge of the plaintiff, when the judgment entered in the summary proceedings was admitted in evidence, and held to be a bar to the action. Upon an appeal to this court, it was held that that was error; that the judgment by default in summary proceedings was conclusive only as to those allegations which the petition therein stated as grounds for a recovery under the statute; that the affirmative allegations of the plaintiff in the answer to the petition did not widen the issue; that if the fact established by the judgment, that some rent was due, was to be taken to prove, inferentially, that the defendant had not broken the contract, and that, therefore, he had not discharged the plaintiff improperly, the burden was upon the defendant to show affirmatively that the judgment went upon that ground, and not simply on the ground that the contract did not apply to the rent; and that, as the present action and the summary proceedings were entirely different causes of action, one claiming an estoppel by the former judgment must show that the issuable fact was determined in the summary proceedings.
In the Zoeller Case, which was an action against the sheriff to recover for the conversion of a carriage taken by him under an execution, it was held that a judgment in an action brought for a conspiracy to defeat the collection of certain judgments held by other parties, to which action the plaintiff was not a party, was not [620] a bar to the plaintiff’s action, and that, before it could affect the plaintiff’s recovery, it must at least have been shown that there was an adjudication in the conspiracy action condemning the plaintiff’s mortgage, and that the burden of establishing that fact was upon the defendant. It was also held that, as neither the plaintiff nor his assignor were made parties to the action, they were not bound by the adjudication therein.
In the Lewis Case it was said:
“Where a judgment may have proceeded upon either or any of two or more different and distinct facts, the party desiring to avail himself of the judg- . ment, as conclusive evidence upon some particular fact, must show affirmatively that it went upon that fact, or else the question is open for a new contention.”
I am unable to see how the doctrine of any of the cases cited is applicable to the question under consideration. The only issue between the parties either in the case tried before the referee, or in the case at bar, was whether the defendant, as the legal representative of her testator, was liable to the plaintiff or the estate she represented for the debt in question. The principal and the only fact at issue between the parties was whether the defendant’s testator was individually liable to the plaintiff for the amount of such debt. Whether such indebtedness arose from the defendant’s testator having received the money personally, or whether he became personally liable to repay it as surviving partner, the liability was the same, and whether it arose in the one way or the other was only an incident relating to the manner of proving the principal fact. In the cases cited by the appellant, the causes of action in the former and subsequent suits were different, and the facts as to which it was held that the former judgments were not an estoppel were immaterial and unessential to establish the cause of action in suit. Here the cause of action sought to be enforced in the former proceeding and that upon which the plaintiff seeks to recover in this action were the same. In discussing the question when the cause of action is the same in two cases, Allen, J., in Stowell v. Chamberlain, 60 N. Y. 272, 276, said:
“The rule is that the judgment of a court of competent jurisdiction directly upon the point is, as a plea, a bar, and as evidence conclusive, between the same parties, upon the same matter, directly in question in another action or court. A matter or cause of action is res judicata when it is actually merged in a judgment, or the same point has already been decided between the same parties; and if, by law, a judgment could have been given for the plaintiff in a former suit, for precisely the same cause of action as that for which the present suit is brought, it has, within the rule, passed into judgment, and is res judicata. But in order to bar the second action the circumstances must be such that the plaintiff might have recovered in the first for the same cause alleged in the second. The question .is whether the same evidence will maintain both actions. If the evidence which will sustain the second would have authorized a recovery in the first, under the allegations of the complaint, the first judgment is an absolute bar to the second.”
In Bell v. Merrifield, 109 N. Y. 202, 209, 16 N. E. 55, the doctrine of the Stowell Case is approved. In Miller v. Manice, 6 Hill, 121, Walworth, Chancellor, said:
"The question whether a verdict and judgment for the defendant in a former action is a bar to a second suit for the same cause or matter does not
[621] depend upen the fact that the proof in the former suit was sufficient to sustain that action; for where the same matter was in issue, and submitted to the jury in the former suit without sufficient proof, the decision of the jury upon the matter in issue, and thus submitted to them, followed by the judgment of the court upon their verdict, will be a bar to another action for the same cause or matter, where the same evidence which is necessary to sustain the second suit, if it had been given in the former action, would have authorized a recovery therein.”
While from the referee’s report it may seem that he was of the opinion that the plaintiff could not recover in that proceeding against the defendant as the representative of the surviving partner, yet the quotation from his opinion contained in the respondent’s brief, if correct, shows that he entertained the opposite opinion, and that the plaintiff’s failure to present the proof was not in any way induced by the action of the referee. If, however, it were otherwise, and the referee had erroneously held that she could not recover upon such proof, or that it was inadmissible, her remedy was by appeal, and not by bringing a new action. The weight of authority seems to be adverse to the plaintiff’s claim that the former judgment was not a bar to this áction. As already suggested, the principal fact in issue between the parties in the proceedings under the statute was whether the defendant, as the personal representative of the estate of Truman O. G-ilChrist, was liable to the plaintiff for the claim presented by her. The claim presented was for $3,000 and interest against the defendant, without any specification or suggestion as to whether the liability sought to be enforced was based upon the claim that the defendant’s testator had the money in question personally, or that it was not based upon the claim that he was liable therefor as surviving partner of the firm of which he was a member. If the defendant was liable, it was because her testator had either had the money sought to be recovered, or because it has been had by the firm of which he was a member and the surviving partner. Under these circumstances, the plaintiff, upon introducing the proper proof, might have recovered against the defendant upon the ground that, as such surviving partner, her testator was liable for the money in question, as well as if she had been able to prove that the money was originally deposited with him. It was a matter of proof only. The plaintiff in that proceeding might have produced the evidence upon which she now claims the right to recover. It was as admissible there as it would have been in this action if no former proceeding had been had. The liability, in either case, was one that could have been enforced against the defendant’s testator as an individual, and it is only upon the ground that as surviving partner he was individually liable that this action could be maintained against the defendant, if there was no former judgment between the parties. That this matter might have been litigated and determined in the former proceeding is manifest, and the fact that the plaintiff omitted to produce upon the former trial all the evidence that was admissible in her behalf does not entitle her to retry the question of the defendant’s liability. Having considered all the authorities to which our attention has been called, and without attempting to explain or harmonize all that may have been said by judges and text writers upon the question of [622] estoppel by judgment, we are of the opinion that the rule that a former judgment is final and conclusive between the parties, not only as to the matters actually determined, but as to every other matter within the legitimate purview of the original action, which might have been litigated and decided, was properly applied in this action, and that the judgment should be affirmed. Judgment affirmed, with costs. All concur.