Clark v. Scoville

• Decision Date: 26 April 1910
• Citation: 198 N.Y. 279,91 N.E. 800
• Parties: CLARK v. SCOVILLE et al.
• Court: New York Court of Appeals Court of Appeals

198 N.Y. 279

91 N.E. 800

CLARK

v.SCOVILLE et al.

Court of Appeals of New York.

April 26, 1910.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Margaret E. Clark against Edward Tracy Scoville and others, executors of John Hyland, deceased. From an order of the Appellate Division (133 App. Div. 821,118 N. Y. Supp. 235), reversing an order made at Special Term, which struck out the words ‘on the merits' from a judgment of dismissal rendered in the action, defendants on leave granted (134 App. Div. 956,118 N. Y. Supp. 1100) appeal; certain questions being certified. Reversed, and questions answered.

The general history of this protracted litigation may be learned by reading the reports of its passage through the courts. 88 App. Div. 392,84 N. Y. Supp. 640; 111 App. Div. 35,97 N. Y. Supp. 1117; 116 App. Div. 923,102 N. Y. Supp. 1127; 133 App. Div. 821,118 N. Y. Supp. 235; 185 N. Y. 541, 77 N. E. 1184, 1197; 191 N. Y. 8, 83 N. E. 659. The action was commenced on the 3d of January, 1905, to recover from the defendants, as the executors of John Hyland, deceased, the amount of a promissory note for $10,000, alleged to have been made by him on the 1st of February, 1900, and forthwith delivered to the plaintiff for value. The answer contained several defenses: (1) A general denial in substance; (2) want of jurisdiction, in that after the claim founded on said note had been presented to the executors by the plaintiff and rejected by them, both parties, by a writing duly signed and filed pursuant to statute (Code Civ. Proc. § 1822), consented that said claim ‘be heard and determined by the surrogate of Livingston county upon the judicial settlement of the accounts of said executors'; (3) the short statute of limitations in that the action was not commenced within six months after the rejection of said claim. On the 3d of October, 1906, judgment was entered in favor of the defendants and against the plaintiff ‘dismissing the complaint upon the merits, and for the sum of $67.88 costs.’ Said judgment, as it recites, was entered on a verdict ‘rendered by the direction of the court’ at a Trial Term held on the 1st of October, 1906, in the county of Steuben. Some years later, in said proceeding which had been stipulated for trial before the surrogate of Livingston county, the defendants sought to interpose said judgment as a bar, and on the 11th of January, 1909, the motion now before the court was made by the plaintiff at a Special Term held by the justice, who directed the verdict to strike from the judgment the words ‘on the merits.’ The motion was granted, but on appeal to the Appellate Division the order was reversed and the motion denied. The plaintiff obtained leave to appeal to the Court of Appeals, and the following questions were certified: ‘(1) Had the Supreme Court power to grant the order appealed from? (2) Was the judgment entered upon the verdict as directed by the court at Trial Term a judgment upon the merits?’Charles D. Newton, for appellants.

Fletcher C. Peck, for respondent.

VANN, J. (after stating the facts as above).

The main question presented by this appeal is whether the judgment before us was rendered on the merits. The learned justices of the Appellate Division were of the opinion that, as the verdict might have been directed on the merits, the judgment is a bar; but, according to the true rule, it is not a bar unless it must have been directed on the merits. The judgment roll is the primary, but not the exclusive, guide to determine the question; and, when it appears therefrom that the judgment might have been rendered on the merits, or upon a ground not involving the merits, the presumption is that it was not upon the merits, and the burden is upon the one who claims it is a bar to show by extrinsic evidence consistent with the judgment roll that it was in fact rendered on the merits. Thus, more than 40 years ago, all the justices of the Supreme Court of the United States united with Mr. Justice Nelson in laying down the following rule upon the subject: ‘As we understand the rule in respect to the conclusiveness of the verdict and judgment in a former trial between the same parties, when the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive per se, it must appear, by the record of the prior suit, that the particular controversy sought to be concluded was necessarily tried and determined-that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties-and, further, in cases where the record itself does not show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the record may be received to prove the fact; but, even where it appears from the extrinsic evidence that the matter was properly within the issue controverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its consideration and determination, it will not be concluded.’ Packet Company v. Sickles, 5 Wall. 580, 592, 18 L. Ed. 550. So in a still earlier case before the Court of Errors in this state, after a careful review of the authorities in this country as well as in England, all the judges concurred in holding that a verdict cannot be urged as an estoppel to the litigation of a fact which was not necessarily passed upon by the jury in the previous suit. Wood v. Jackson, 8 Wend. 9, 36, 22 Am. Dec. 603. The later authorities are to the same effect. In Lewis v. Ocean Navigation & Pier Co., 125 N. Y. 341, 348,26 N. E. 301, 303, the court said: ‘In such a case 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 judgment as conclusive evidence upon some particular fact must show affirmatively that it went upon that fact, or else the judgment is open for a new contention.’ See, also, Bell v. Merrifield, 109 N. Y. 202, 211,16 N. E. 55,4 Am. St. Rep. 436;People ex rel. Bridgeman v. Hall, 104 N. Y. 170, 178,10 N. E. 135;Matter of Spelman v. Terry, 74 N. Y. 448, 451. Even if the merits were involved in one of several issues presented by the pleadings, there is no bar unless that particular issue was actually passed upon, and nothing can be left to conjecture as to whether it was passed upon or not. Washington, Alexandria & G. Steam Packet Co. v. Sickles, 24 How. (U. S.) 333, 16 L. Ed. 650; Herman on Estoppel, §§ 252, 280.

In this action there were several issues: (1) Was the note a forgery? (2) Was the note outlawed?...