151 N.Y. 122, Reich v. Cochran

Citation:151 N.Y. 122
Party Name:LORENZ REICH, Appellant, v. WILLIAM F. COCHRAN, Respondent.
Case Date:December 01, 1896
Court:New York Court of Appeals

Page 122

151 N.Y. 122

LORENZ REICH, Appellant,

v.

WILLIAM F. COCHRAN, Respondent.

New York Court of Appeal

December 1, 1896

Argued October 29, 1896.

Page 123

COUNSEL

Delos McCurdy for appellant. When the second action between the parties is upon a different claim or demand, a former judgment is not a bar as to all matters which might have been litigated and decided therein; but in the second action such former judgment is a bar only as to the material and essential facts which were actually put in issue in the former action and litigated and necessarily determined therein in order to support the judgment. (Russell v. Place, 94 U.S. 610; Bell v. Merrifield, 109 N.Y. 202; Bissell v. Spring Valley Township, 124 U.S. 225; House v. Lockwood, 137 N.Y. 259, 268; Cromwell v. County of Sac, 94 U.S. 351; Reynolds v. Stockton, 140 U.S. 254; Bigelow on Estoppel [5th ed.], 152; Smith v. Brunswick, 80 Me. 189, 193; Young v. Pritchard, 75 Me. 513, 518; Daggett v. Daggett, 143 Mass. 516, 521; Foye v. Patch, 132 Mass. 105, 110.) The cause of action in the Supreme Court is not upon the same claim or demand presented in the petition in the District Court proceeding--the causes of action are not identical--and no fact in issue in the Supreme Court case was distinctly pleaded or put in issue as a material and essential fact in the District Court proceeding and there tried and necessarily decided between the parties, upon such issue, in order to uphold the judgment therein. (Dawley v. Brown, 79 N.Y. 398; People ex rel. v. Howlett, 76 N.Y. 574; Howlett v. Tarte, 10 C. B. [ N. S.] 813; Davis v. Hedges, L. R. [ 6 Q. B.] 687; Caird v. Moss, L. R. [ 33 Ch. Div.] 22; Davis v. Brown, 94 U.S. 428; Palmer v. Hussey, 87 N.Y. 306.) To be a bar to a subsequent action the first judgment must be an existing judgment; it must be a final judgment and a judgment on the merits. (Loeb v. Willis, 100 N.Y. 231; Barrs v. Jackson, 1 Y. & C. C. C. 585; Hunter v. Stewart, 31 L. J. Ch. 346.) The mere exhibition on the pleading of the District

Page 124

Court record did not even create the presumption that the District Court had jurisdiction either of the parties or of the subject-matter. (L. 1882, ch. 410, § § 1284-1286, 1289; Turner v. Bank of N. A., 4 Dallas, 8; Robertson v. Case, 97 U.S. 646; Grace v. Am. C. Ins. Co., 109 U.S. 283; C. Ins. Co. v. Rhoads, 119 U.S. 237; Peper v. Fordyce, 119 U.S. 469; Frees v. Ford, 6 N.Y. 176; Gilbert v. York, 111 N.Y. 544, 549; Rathburn v. Weber, 13 Civ. Proc. Rep. 50; Miner v. Burling, 32 Barb. 540; Kiernan v. Reming, 7 Civ. Proc. Rep. 311.)The judgment of the District Court was not properly pleaded in this action, as the facts which gave jurisdiction were not set forth. (Ford v. Babcock, 1 Den. 158; Bennett v. Burch, 1 Den. 141; Dakin v. Hudson, 6 Cow. 221; Bowman v. Russ, 6 Cow. 234; Thomas v. Robinson, 3 Wend. 267; Cleveland v. Rogers, 6 Wend. 438; Stewart v. Smith, 17 Wend. 517; Nicholl v. Mason, 21 Wend. 339; Bloom v. Burdick, 1 Hill, 130; Dowd v. Stall, 5 Hill, 186.)

Treadwell Cleveland for respondent. The validity of the sub-lease was a question necessarily involved in and decided by the District Court judgment, and the plaintiff is consequently estopped by that judgment from questioning such validity. (Brown v. Mayor, etc., 66 N.Y. 385; Jarvis v. Driggs, 69 N.Y. 143; Nemetty v. Naylor, 100 N.Y. 562; Code Civ. Proc. § 2249; Clemens v. Clemens, 37 N.Y. 59; Gates v. Preston, 41 N.Y. 113; Bell v. Merrifield, 109 N.Y. 210; Newton v. Hook, 48 N.Y. 676; Malloney v. Horan, 49 N.Y. 111; Blair v. Bartlett, 75 N.Y. 150; Dunham v. Bower, 77 N.Y. 76.) The judgment of the District Court is properly pleaded, or, if not, the objection to the form in which it is pleaded, not having been taken at the trial, cannot be raised now. Furthermore, the judgment may be introduced in evidence even if not pleaded in bar. (Oliphant v. Burns, 146 N.Y. 218; Gillies v. Manhattan B. I. Co., 147 N.Y. 420; Webb v. Buckelew, 82 N.Y. 555.)

MARTIN, J.

On the twenty-fourth day of February, 1886, the trustees under the will of William B. Astor leased to the

Page 125

plaintiff premises in the city of New York known as the Cambridge Hotel. Afterwards, and on or about the first day of May, 1887, the defendant loaned to the plaintiff several large amounts of money, to secure the payment of which the plaintiff gave him his bonds and executed to him mortgages upon such lease. On the first day of February, 1888, the plaintiff assigned the Astor lease to the defendant, and thereupon the defendant made and executed a sub-lease of the premises to the plaintiff.

The purpose of this action was to procure an adjudication to the effect that the lease from the defendant to the plaintiff was in fact intended as a mortgage, that it was usurious, and that the assignment by the plaintiff to the defendant, and the lease from the defendant to the plaintiff, should be delivered up and canceled upon the ground of such usury.

On August 1st, 1893, the sum of $13,250.00 rent became due to the defendant according to the terms of the lease between the parties, which was not paid. The defendant subsequently commenced summary proceedings in the District Court of the city of New York in the district in which the premises are situated to dispossess the plaintiff for non-payment of rent. Upon the return day of the precept the plaintiff herein appeared by attorney. No answer was interposed, and this defendant had judgment, and a warrant issued, but was stayed until the following day when the plaintiff paid the amount of the judgment.

The defendant subsequently served a supplemental answer in this action, setting up the foregoing proceedings and judgment as a defense herein. On the trial a certified copy thereof was introduced in evidence, and a motion was...

To continue reading

FREE SIGN UP
146 practice notes
  • 202 P.2d 394 (Idaho 1949), 7434, Snyder v. Blake
    • United States
    • Idaho Supreme Court of Idaho
    • January 11, 1949
    ...of landlord and tenant so as to render summary proceedings available, the existence of a valid lease is necessary. Reich v. Cochran, 151 N.Y. 122, 45 N.E. 367, 37 L.R.A. 805, 56 Am.St.Rep. 607, 3 N.Y.Ann.Cas. 344; Robertson v. Birdie, Sup., 107 N.Y.S. 75; 36 C.J. Landlord and Tenant, sec. 1......
  • 155 N.Y. 257, Stewart v. Union Mut. Life Ins. Co.
    • United States
    • New York New York Court of Appeals
    • March 8, 1898
    ...did not raise any issue, is untenable. (Code Civ. Pro. §§ 519, 539, 546, 723; Werner v. City of Rochester, 149 N.Y. 563; Reich v. Cochran, 151 N.Y. 129; F. N. Bank v. Church, 3 T. & C. 10; 60 N.Y. 634; Wall v. B. W. W. Co., 18 N.Y. 119; Elton v. Markham, 20 Barb. 343; Armstrong v. Danah......
  • 165 N.Y. 78, Dearing v. Mckinnon Dash & Hardware Co.
    • United States
    • New York New York Court of Appeals
    • November 27, 1900
    ...Buck v. Sherman, 2 Doug. 176; March v. Bennett, 5 McL. 117.) The Statute of Frauds was available to the defendants. ( Reich v. Cochran, 151 N.Y. 129.) VANN, J. According to the law of the state of Michigan, which was duly proved upon the trial, the instrument in question is a trust mortgage......
  • 166 N.Y. 485, In re Greene
    • United States
    • New York New York Court of Appeals
    • April 16, 1901
    ...207, 210; McDonald v. Mayor, etc., 68 N.Y. 23; Parr v. Vil. of Greenbush, 72 N.Y. 463; Pray v. Hegeman, 98 N.Y. 351; Reich v. Cochran, 151 N.Y. 122; Barber v. Kendall, 158 N.Y. 401.) This statute cannot be sustained by virtue of the legislative power over taxation or its power of control ov......
  • Free signup to view additional results
146 cases
  • 202 P.2d 394 (Idaho 1949), 7434, Snyder v. Blake
    • United States
    • Idaho Supreme Court of Idaho
    • January 11, 1949
    ...of landlord and tenant so as to render summary proceedings available, the existence of a valid lease is necessary. Reich v. Cochran, 151 N.Y. 122, 45 N.E. 367, 37 L.R.A. 805, 56 Am.St.Rep. 607, 3 N.Y.Ann.Cas. 344; Robertson v. Birdie, Sup., 107 N.Y.S. 75; 36 C.J. Landlord and Tenant, sec. 1......
  • 155 N.Y. 257, Stewart v. Union Mut. Life Ins. Co.
    • United States
    • New York New York Court of Appeals
    • March 8, 1898
    ...did not raise any issue, is untenable. (Code Civ. Pro. §§ 519, 539, 546, 723; Werner v. City of Rochester, 149 N.Y. 563; Reich v. Cochran, 151 N.Y. 129; F. N. Bank v. Church, 3 T. & C. 10; 60 N.Y. 634; Wall v. B. W. W. Co., 18 N.Y. 119; Elton v. Markham, 20 Barb. 343; Armstrong v. Danah......
  • 165 N.Y. 78, Dearing v. Mckinnon Dash & Hardware Co.
    • United States
    • New York New York Court of Appeals
    • November 27, 1900
    ...Buck v. Sherman, 2 Doug. 176; March v. Bennett, 5 McL. 117.) The Statute of Frauds was available to the defendants. ( Reich v. Cochran, 151 N.Y. 129.) VANN, J. According to the law of the state of Michigan, which was duly proved upon the trial, the instrument in question is a trust mortgage......
  • 166 N.Y. 485, In re Greene
    • United States
    • New York New York Court of Appeals
    • April 16, 1901
    ...207, 210; McDonald v. Mayor, etc., 68 N.Y. 23; Parr v. Vil. of Greenbush, 72 N.Y. 463; Pray v. Hegeman, 98 N.Y. 351; Reich v. Cochran, 151 N.Y. 122; Barber v. Kendall, 158 N.Y. 401.) This statute cannot be sustained by virtue of the legislative power over taxation or its power of control ov......
  • Free signup to view additional results