Appeal from Trial Term, Chenango County.
Action by Charles H. Reynolds against Alfred E. Alderman. From a judgment dismissing the complaint at the close of plaintiff's proof, and from an order denying a new trial, plaintiff appeals. Affirmed.
[114 N.Y.S. 464] The plaintiff is an innkeeper. On the 3d day of June, 1906, the defendant put up a team of horses at the plaintiff's inn, which he had hired from a livery in Hamilton, and became a guest at such inn. On the same day one McNulty put up a team at such inn, which he had hired from one Snow, the keeper of a livery in Norwich, and also became a guest at the inn. When the defendant applied for his team, the plaintiff's hostler gave him the team that had been left by McNulty, and such team was driven by the defendant, supposing he had the right team, to Hamilton. where one of the horses died next day, and where the other was sick and injured. Snow thereupon commenced an action against this plaintiff to recover the damages to the team which the defendant in this action had taken away. The plaintiff notified this defendant, who was then an infant, that he had been sued, and requested him to defend the action, which he failed and neglected to do. The action was tried, and resulted in a verdict in favor of Snow against this plaintiff for $306 damages, and judgment was entered thereon, which, with costs, amounted to the sum of $391.13. The plaintiff paid such judgment, and brought this action against this defendant to recover the amount thereof. On the trial the plaintiff was nonsuited, and the plaintiff appeals.
Plaintiff gave by mistake to defendant a team belonging to liveryman and left in plaintiff's stable by a guest. The owner of the team obtained judgment against plaintiff for damages, on the ground that plaintiff was liable as an innkeeper or because of his negligence. Plaintiff gave defendant notice to defend in this action. Held, that plaintiff, paying the judgment, could not recover the amount thereof from defendant. Order (1907) 103 N.Y.Supp. 863, 54 Misc.Rep. 73, affirmed.
Ward M. Truesdell, for appellant.
E. W. Cushman, for respondent.
Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
The complaint in the action brought by Snow against Reynolds may have been for either one of two causes of action: First, to recover against Reynolds on his liability as an innkeeper; or, second, to recover damages for his negligence or that of his hostler in carelessly letting Alderman take Snow's team away from his inn. In form it states but one cause of action, but the allegations are sufficient under which a recovery might have been had on either one of the two theories mentioned. Nothing appears to show upon which theory the recovery was had. The plaintiff here seeks to hold the defendant liable over to him on the claim that he has suffered from a judgment caused by the defendant's acts.
With reference to claims of that character, it was said by Follett, C. J., in O. S. N. Co. v. Co. T. E., 134 N.Y. 461, 464, 31 N.E. 987, 988,30 Am.St.Rep. 685:
" There are many reported cases of recoveries of sums which persons have been compelled by judgments to pay for the neglects of others, and the general rule is that there may be a recovery had in such cases unless the parties concurred in the wrong which caused the damages. Rochester v. Montgomery, 72 N.Y. 67; Village of Ft. Jervis v. First Nat. Bank, 96 N.Y. 550; Chicago City v. Robbins, 2 Black, 418, 17 L.Ed. 298; Robbins v. Chicago, 4 Wall. 657, 18 L.Ed. 427; Lowell v. Boston & Lowell R. R. Co., 22 Pick. (Mass.) 24, 34 Am. Dec. 33.The foregoing cases were brought by cities to recover sums [114 N.Y.S. 465] which they had been compelled to pay to travelers on the streets for injuries caused by the negligent conduct of the defendants."
The learned court at the Trial Term put the dismissal of the complaint on the ground that the judgment in the Snow action, upon which this action is predicated, is conclusive upon the plaintiff as to his own contributory negligence. I do not agree to that conclusion. Nevertheless the dismissal must be sustained because no cause of action was established.
The burden was upon the plaintiff to establish his cause of action. In order to do so, he was bound to show that the questions at issue in this action were litigated and determined in the former action. In Rudd v. Cornell, 171 N.Y. 114, 127, 63 N.E. 823, 827, Martin, J., in writing the opinion of the court, said:
" It is settled by the decisions of this court that a judgment is conclusive in a second action only when the same question was at issue in a former suit and the subsequent action was between the same parties or their privies, and that the conclusive character of a judgment extends only to the precise issues which were tried in the former action. They must be identical in each action, not merely in name, but in fact and in substance, and the party seeking to avail himself of a former judgment must show affirmatively that the question involved in the second action was material and actually determined in the former, as a former judgment will not operate as an estoppel as to immaterial or unessential facts, even though put in issue and directly decided. In other words, a former judgment is final only as to the facts which are actually litigated and decided, which relate to the issue therein, and the determination of which was necessary to the determination of that issue. Reynolds v. Æ tna Life Ins. Co., 160 N.Y. 635, 651, 55 N.E. 305."
In Lewis v. O. N. & P. Co., 125 N.Y. 341, 26 N.E. 301, it was held that where a judgment may have proceeded upon two or more distinct facts, the party seeking to avail himself of it in a subsequent action as conclusive evidence as to one of those facts must show affirmatively that it went upon that fact. There was no effort to show here upon which of the two theories the former judgment proceeded. The plaintiff simply relied upon his judgment in order to entitle him to succeed. The burden was upon him to show that the ...