98 N.Y. 351, Pray v. Hegeman

Citation:98 N.Y. 351
Party Name:JOSEPH M. PRAY et al., as Executors, etc., Appellants, v. JOSEPH HEGEMAN, as Executor, etc., et al., Respondents.
Case Date:March 03, 1885
Court:New York Court of Appeals

Page 351

98 N.Y. 351

JOSEPH M. PRAY et al., as Executors, etc., Appellants,


JOSEPH HEGEMAN, as Executor, etc., et al., Respondents.

New York Court of Appeal

March 3, 1885

Argued February 4, 1885.

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[Copyrighted Material Omitted]

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Josiah T. Marean for appellants. The former action was one for the recovery of specific personal property, capable of identification, and of assignment and manual delivery. (Ferris v. Van Vechten, 73 N.Y. 119.) The present action is to enforce an equitable lien on such property. The causes of action are different and inconsistent. (Hudson v. Swan, 83 N.Y. 553; Graham v. Reed, 57 Id. 681; Bradley v. Aldrich, 40 Id. 504; Ross v. Mather, 51 Id. 108; Barnes v. Quigley, 59 id. 265;

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McMichael v. Kilmer, 76 Id. 36.)The claim to the ownership of the fund being abandoned, and the defendants not having been in any way misled to their hurt by the assertion of ownership rather than a lien, and the existence of the lien being always as well known to them as to the plaintiff, the right to enforce the lien is in no way affected. (Mexal v. Dearborn, 12 Gray, 366.) Since the present cause of action was not adjudged in the former action, and since no fact or matter of law upon which this action depends was there expressly determined adversely to the plaintiff, or impliedly so determined by reason of its entering as a necessary element into something expressly determined, or into the denial of relief, therefore the former judgment furnishes no defense. (Woodgate v. Fleet, 44 N.Y. 13; Campbell v. Consalus, 25 Id. 613; Dunham v. Bower, 77 Id. 76; Blair v. Bartlett, 75 Id. 150; Collins v. Bennett, 46 Id. 490; Gates v. Preston, 41 Id. 113; Sager v. Blain, 44 Id. 445.) Privity with the other defendants in the former action cannot be predicated upon a mere succession by Edward to their situation to make a certain untenable claim. (1 Greenl. on Ev., § 189.) Since the plaintiff in the former action failed, and the property remained with the defendants, and since the defendants had no quarrel between themselves, nothing which was determined became res adjudicata as between them. (Albany City Sav. Bk. v. Burdick, 87 N.Y. 40; Kennedy v. Apgar, 93 Id. 548.) There were no issues whatever between them, in the former action, the plaintiff and the other defendants, except so far as they were in privity with Hegeman in the capacity in which he was there sued, which could in that action be tried and determined, and neither they, nor the defendant, Edward D. Moore, who claims privity with them, can claim any thing there adjudged as an estoppel against the plaintiff, unless Hegeman was present in that action as he is in this, in his representative capacity. (Paige v. Cagwin, 7 Hill, 372; Strong v. Wheeler, 5 Pick. 410.) Hegeman, as executor, cannot claim the benefit of an estoppel in his favor individually, and the other defendants as cestuis que trust to the executor are in the same situation. (Rathbone v. Hooney, 58 N.Y. 467.)

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The waiver of a former adjudication as an estoppel by a trustee is conclusive upon all parties interested or claiming to be interested as cestuis que trust in the property in his hands sought to be reached. (Wood on Lim. 386.) If the creditor brings an action for administration, the residuary legatee may set up the statute though the executor will not. (Partridge v. Mitchell, 3 Edw. Ch. 180; Fuller v. Redman, 26 Beav. 614.)

Joseph M. Pray and Richard Ingraham, executors, appellants in person. The plaintiffs, as judgment creditors, are not asserting any title or estate in, or to, the property of the debtor, and are not in this action in privity with the judgment debtor, and do not proceed under or by virtue of any right or interest derived from him. (1 R. S. 729, § 57; Williams v. Thorn, 70 N.Y. 270.) The plaintiffs have the right as judgment creditors, under the Code, to compel the application of the property, which belongs to the debtor, to the satisfaction of the creditor's demand. (Code Civ. Pro., § 1871.) The plaintiffs are not estopped by the judgment recovered in the action of Moore v. Hegeman. (Cromwell v. County of Sac, 94 U.S. 351; Kelly v. Town of Milan, 21 F. 863.) The claim of the plaintiffs can, it is respectfully submitted, be fully sustained upon the broad ground that there is not necessarily any privity whatever between a judgment creditor and his judgment debtor. (Waters' Appeal, 35 Penn. St. 523; Kline's Appeal, 86 Id. 363; Chandler's Appeal, 100 Id. 263; Barber v. Pres. D. & H. Co. of Hartford, 8 Conn. 407; Bigelow on Estoppel, 280.) Even if it could be sustained, as a proposition of law, that a judgment creditor stands in privity with his debtor, so that the rule of estoppel by a former adjudication could be applied to him, yet equity does not, in this case, require the enforcement of the rule, which is only applied to prevent vexatious litigation. (O'Dougherty v. Remington, 81 N.Y. 478, 500.)

Benjamin F. Tracy for respondents. A former judgment

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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. (Clemens v. Clemens, 37 N.Y. 74; Jordan v. Van Epps, 85 Id. 436; Smith v. Smith, 79 Id. 634; Bloomer v. Sturges, 58 Id. 176; Stowell v. Chamberlain, 60 Id. 276; Harris v. Harris, 36 Barb. 88; Embury v. Conner, 3 Comst. 522.)In discussing what might have been determined in the former action we may look beyond what appears on the face of the judgment to every allegation which, having been made on one side and denied on the other, was at issue and determined in the course of the proceedings. (Clemens v. Clemens, 37 N.Y. 73.) In discussing what was determined, we may look to the judgment as based on the findings (Sheldon v. Edwards 35 N.Y. 287), and the findings may be of fact or law, or both. (People v. Stephens, 51 How. 241; House v. Mullen, 22 Wall. 46; Bouchand v. Dias, 3 Denio, 244; Gould v. Evansville R. R., 91 U.S. 533; Birkhead v. Brown, 5 Sandf. 141.) Though the judgment be of mixed law and fact, and the law be erroneous, the judgment is conclusive. (Collins v. Bennett, 46 N.Y. 495; Morgan v. Plumb, 9 Wend. 287.) The estoppel extends to every point which properly belonged to the subject of the allegation, and which the parties, exercising reasonable diligence, might have brought forward at the time. (Gould v. Evansville R. R., 91 U.S. 533; Perry v. Dickerson, 85 N.Y. 347.) Even if the original action was to recover specific personal property, and this action is to recover moneys, the fact that the question of title had been passed upon would be fatal. (Stowell v. Chamberlain, 68 N.Y. 277.) The former action was between the same parties or their privies. (Candee v. Lord, 2 Comst. 275; Hersey v. Benedict, 15 Hun, 285; Curtis v. Leavitt, 15 N.Y. 51; Hall v. Stryker, 27 Id. 603; Ludington's Petition, 5 Abb. N. C. 323.) The allegations in the complaint should control the title. (Christy v. Libby, 35 How. Pr. 119; Beers v. Shannon, 73 N.Y. 297; Stilwell v. Carpenter, 62 Id. 640; 2 Abb. N. C. 238.)

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The court will look into the complaint and proceedings to determine the character of the parties thereto. (Murray v. Church, 1 Hun, 49; Bartlett v. Hatch, 17 Abb. Pr. 46; Forrest v. Mayor, etc., 13 Id. 352; Butterfield v. Macomber, 22 How. Pr. 150; 3 Williams on Executors, 1937, note n.) Where the subject-matter of an action against an executor is part and parcel of the estate, and the remedy sought is wholly against the funds of the estate and relative to the estate, and in no...

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