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session for a definite time, and the levy is made while that right of possession continues. It may well be that a mortgagor, owning a title subject to the mortgage, who has a right to continue possession till default, has a leviable interest in the personalty. The excution creditor may proceed with his remedy, and, if necessary to protect himself, satisfy the mortgage. But the case at bar is widely different. The execution debtor never had any title. The plaintiff was the original owner, and never parted with his title, but made an executory agreement, by which, upon compliance, it was his duty to give the title to the other. It would also fulfill the condition of his contract if he delivered possession of the property upon compliance by the other. No action could be maintained by the party seeking to purchase for possession of the property, under the ex. ecutory agreement, until he had performed the full act which would give him the title. If the plaintiff saw fit to leave the property in the hands of another, for convenience of delivery or otherwise, there was no time when he might not regain possession. Green was acting simply as the agent of the owner, and that agent had no right or power to transfer to any one a legal right of possession of the property for any definite time. As, therefore, the plaintiff had a right at any time to call upon the other for his property, according to the agreement and for his own security, no one could acquire an adverse right of possession as against him. The possibility of the right of definite possession is no greater than the possibility of the right of definite title. The former flows out of the latter. It is conceded that the officer levied upon this property. The term "levy," in legal parlance, signifies the taking possession, and this taking possession was a trespass upon the plaintiff's rights. Where trespass will lie, replevin will lie. And the point which the defendant makes, that this action cannot be maintained because the plaintiff had not a right to reduce the property to possession, is not well founded. Judgment is therefore given for plaintiff upon the demurrer, with costs.

Judgment for plaintiff.

(75 Hun, 364.)

LOUIS v. EMPIRE STATE INS. CO.

(Supreme Court, General Term, Fifth Department. January 18, 1894.) Costs-AFTER OVERRULING DEMURRER.

Where an interlocutory judgment is entered overruling a demurrer to the complaint, plaintiff is not entitled to costs before notice of trial.

Appeal from special term, Monroe county.

Action by Hinman Louis against the Empire State Insurance Company. From an order denying a motion for a retaxation of costs, plaintiff appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
John F. Dorthy, for appellant.
S. L. Adler, for respondent.

LEWIS, J. The defendant demurred to the plaintiff's complaint upon the ground that it failed to state a cause of action. The de murrer was overruled, with costs, but with leave to the defendant to withdraw the demurrer and answer over within 20 days upon the payment of costs, and, in case of his failure so to do, plaintiff was at liberty to enter final judgment for the relief demanded in his complaint. Plaintiff presented to the clerk for taxation a full bill of costs, including the items of $25 before notice of trial, $1 for serving summons and complaint, and 63 cents for the sheriff's fees on execution. These items mentioned the clerk refused to tax, and the plaintiff moved the special term for an order directing the clerk to tax said items. His motion was denied, and, from the order denying the motion, plaintiff appealed to this court.

It was an interlocutory judgment the plaintiff was to enter upon the decision overruling the defendant's demurrer. The $25 costs before notice of trial he will be entitled to tax when he comes to enter his final judgment. The $25 before notice of trial is for preparing the complaint. The complaint being held to be good, it is not necessary to redraw it. The defendant should be required to pay the costs of such proceedings as by the operation of the order overruling his demurrer will be vacated. The plaintiff was obliged to prepare for the argument of the demurrer; therefore, he was entitled to costs after notice and before trial; but nothing that he had done before noticing the case for trial was in any way vacated by the judgment overruling the demurrer. The weight of authority seems to sustain this rule. Kniering v. Lennon, (Com. Pl. N. Y.) 22 N. Y. Supp. 775; Skinner v. White, 69 Hun, 127, 23 N. Y. Supp. 384; Edson v. Dillaye, 8 How. Pr. 273; Phipps v. Van Cott, 15 How. Pr. 110; Crary v. Norwood, 5 Abb. Pr. 219; Anon., 3 Sandf. 756. In Adams v. Ward, 60 How. Pr. 288, the plaintiff demurred to the answer. His demurrer was sustained, and it was very properly held that he was entitled to costs before notice of trial, as compensation for drawing the pleading. The order appealed from should be affirmed, with $10 costs and disbursements of the appeal. All concur.

(75 Hun, 373.)

STAMP v. FRANKLIN.

(Supreme Court, General Term, Fifth Department. January 18, 1894.) 1. RES JUDICATA-PRIVITY BETWEEN PARTIES.

In an action by a married woman to recover for services rendered and board furnished a decedent, a judgment by which she recovered for the services, but which denied a recovery for the board on the ground that it would be presumed to have been furnished by her husband, does not bar an action by the husband for the board, there being no privity

between plaintiffs in the two actions. 2. ESTOPPEL-BY JUDGMENT.

The husband is not estopped from suing for the board because he assisted his wife in the prosecution of the former action, in which a recovery was claimed for the same board. Van Koughnet v. Dennie, 22 N. Y. Supp. 823, 68 Hun, 179, distinguished.

Action by George W. Stamp against Augustus W. Franklin, as executor. Defendant moves for a new trial on exceptions taken at Yates circuit, and ordered to be heard at general term in the first instance. Denied.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Spicer & Morris, (John Gillette, of counsel,) for plaintiff.
Johr. H. Johnson, for defendant.

BRADLEY, J. The action was brought to recover for board alleged to have been furnished by the plaintiff to the defendant's testatrix from the 5th day of November, 1884, to the 10th day of January, 1889. The defendant, among other matters of defense alleges former adjudication of the same subject matter in an action by Edna M. Stamp against the same defendant. She is the wife of the plaintiff, and was called as a witness for him, and when she was asked to state whether she and her husband had a conversation with the testatrix prior to the time they went to her house, on the subject of going there, objection was taken on the ground that, being the plaintiff's assignor, she was not competent to testify to the conversation with the decedent. Thereupon, the plaintiff asked leave to amend his complaint by striking out the allegations of assignment by him to his wife, and of reassignment by her to him, of the alleged claim. The amendment was allowed and made against the objection of the defendant, and exception taken. It is difficult to see the purpose of those allegations in the complaint, since, if the plaintiff's right to assert the claim in his own behalf was dependent upon an assignment by his wife to him, she was incompetent to give evidence of any conversation she had with the testatrix in relation to it. If no such assignment had in fact been made, there was no error in making the correction that was made of the pleading by the amendment. The defendant did not ask for any postponement cf the trial by reason of the amendment. By reference made to the former action, which will hereafter be more particularly mentioned, it does not, nor did it on the trial of this action, appear that any assignment by the plaintiff to his wife had been made of the claim, or necessarily appear that she had made any assignment to him. The trial of the present action proceeded upon the assumption that be was the criginal creditor of the testatrix.

The main question urged by the defendant arises upon the alleged former adjudication as a bar to recovery. It appears that an action was commenced in this court by Edna M. Stamp, the wife of the plaintiff, against the same defendant, for alleged services performed for the defendant's testatrix, and for board furnished to her, and that, as appears by the report of the referee in that action, she recovered for services $1,482.25, and for board $1,148.26, and judgment was directed and entered for $2,631.05, besides costs. On review by the general term the judgment was reversed, and a new trial granted, unless the plaintiff should stipulate to deduct from the recovery $1,148.40, and in that event the judgment, as so modified, was af

firmed. 12 N. Y. Supp. 391. The plaintiff so stipulated, and the judgment was modified accordingly. Thus, it appears by the record in the former action that an amount equal to that included in the judgment for the board and supplies was eliminated from the judg. ment. Thereupon, this action was commenced by the plaintiff to recover the claim for the board and supplies, the amount for which it is asserted was excluded from the judgment recovered by the wife. This was matter within the cause of action alleged in the complaint in that action, and was there litigated. It is the general rule that a judgment of a court of competent jurisdiction is final, not only as to the subject-matter there actually determined, but as to all other matters which the parties might there have litigated and had determined. If, therefore, it can be said that the claim in question was properly the subject of litigation and determination between the parties in the former action, it must be deemed a bar to recovery in the present one. But to constitute a former adjudication, striotly as such, the actions must be by or between the same parties or their privies. That was not necessarily so in this instance, since no privity, in that sense, exists between the plaintiff in that and this action, as no right of action in the wife was founded upon any assignment from the husband, nor is his founded or dependent upon assignment from her. The law of the case, as held by the court on the review, was that the claim for the board and supplies was not due to the wife, but was that of the husband, the present plaintiff, and that she was only entitled to maintain the action for her certain services performed for the testatrix. If, for that reason, she could not and did not recover in that action for such claim, that judgment was not res judicata. Stowell v. Chamberlain, 60 N. Y. 272. It does not appear that there was any evidence on the trial of Mrs. Stamp's action that she furnished provisions for the board in question, and on trial of this action there is evidence tending to prove that they were furnished by the plaintiff. He and his wife were living together in the house of the testatrix, where she also resided, avd there she took her meals, which constituted the board in ques. tion. Nothing appearing to the contrary, it may be assumed that the plaintiff furnished the supplies for the table, and his wife had charge of the housework. Upon that state of facts, the plaintiff, presumptively at least, was, and his wife was not, entitled to recover whatever was due from the testatrix for the board and provisions there furnished to her.

But it is suggested that because the plaintiff aided, by his evidence and otherwise, the prosecution of the action of his wife for the recovery of the claim which is the subject of this action, he is estopped from maintaining his action against the defendant. This, clearly, would be so, if she had recovered for that claim in her action; and the effect would have been the same if the testatrix, with his consent, had paid his wife the amount of it in her lifetime. Reynolds v. Robinson, 64 N. Y. 589, 594. But, although the amount of the claim was included in the judgment entered upon the report of the referee, it was excluded from the final judgment in that action; and therefore no prejudice results to the defendant, from

the prosecution of this action, to enable him to effectually assert estoppel as a defense. In that fact is the difference between this and the case of Van Koughnet v. Dennie, 68 Hun, 179, 22 N. Y. Supp. 823. There, in the former action, the claim for which it was brought was overcome by a counterclaim; and in that way the plaintiff had the benefit of it, and to its extent the defendant's counterclaim was reduced. It was therefore very properly held that, by the assistance of the plaintiff in the second action in the prosecution of the former one by her husband for the same cause, she was estopped from maintaining her action. The conclusion fairly permitted in the case at bar was that the plaintiff in the former action had no right of action for the recovery of the claim which is the subject of the present action, and consequently the final judgment there is no bar here.

At the close of the evidence, each of the parties asked the court for direction of a verdict, and the defendant's counsel requested the court to submit to the jury the questions whether the plaintiff was owner of the claim, and whether it had not been adjudicated in the other action, “and whether the plaintiff, by agreement with his wife, had not consented to her having the claim, and bringing the action upon it in her own name.” This was refused, and verdict directed for the plaintiff, and exceptions were taken. There was no error in these rulings. It quite clearly appeared that the plaintiff had consented that the claim be paid to his wife, and to the bringing and prosecution of the action to recover it; but this did not confer on her a right of property in it, for the purpose of recovery in an action contested in that respect by the defendant. And, for the reasons before stated, there was nothing for the jury on the question of former adjudication. The case is here upon exceptions only. For want of any further requests to do so, the court was not required to submit any question of fact to the jury. No other exceptions require consideration. The motion for new trial should be denied, and the plaintiff have judgment upon the verdict. All concur.

(75 Hun, 416.)

TRUESDELL V. CHUMAR. (Supreme Court, General Term, Fifth Department. January 18, 1894.) EVIDENCE-RES GESTAE.

In an action against a stockholder to recover for wages of a laborer for the corporation, a statement made by the president of the corporation after the work was performed is not admissible as part of the res gestae, though counsel stated, at the time of offering it, that it was to show the nature of the employment, and an accounting between employer and employe. Action by Hiram Truesdell against Charles H. Chumar. Defendant moves for a new trial on exceptions taken at Wyoming circuit, and ordered to be heard at general term in the first instance. Granted. The action is against the defendant as a stockholder in the Eldridge Salt Company, a corporation created pursuant to chapter 40, Laws 1848, author

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