Paine v. Schenectady Insurance Co.

This is an action of assumpsit to recover damages for breach of contract. It was *Page 412 commenced in the Court of Common Pleas, August 27, 1870. The plaintiff recovered judgment in that court at the December Term, 1875. The defendant appealed to this court at the March Term, 1876. May 13, 1876, the defendant filed a plea puis darreincontinuance, setting forth that on the 8th May, 1876, George T. Hanford, who had been duly appointed receiver of the goods and effects of the defendant, had impleaded the plaintiff in the Supreme Court, in the State of New York, and recovered judgment against him for $1,878.11, and costs, "which still remains in full force and effect, not in any wise reversed, annulled, discharged, or satisfied." The plea sets forth the proceeding in the New York suit, showing that the plaintiff therein pleaded in set-off the matters involved in this case, and avers that the cause of action and the issue raised by the pleadings are the same in both suits, and that the parties are identical. To this plea the plaintiff demurs, assigning four causes of demurrer. The first cause is, that the suit set forth in the plea is not alleged to have been instituted before the commencement of the present suit. And in his brief, the counsel for the plaintiff contends that there is no precedent for such a plea where the judgment was recovered by the defendant, or was recovered in a suit commenced subsequently to the suit in which it was pleaded. We do not see that it makes any difference which party has recovered judgment. The true question is, whether the controversy has been determined by a competent tribunal having jurisdiction; for, if it has been, the defendant has the right to insist that it shall not be further prosecuted, unless for some technical reason he cannot have the benefit of the estoppel. The plaintiff says he cannot have the benefit of the estoppel because the suit in this state was first commenced. Is this so? We think not. The defendant had the right to sue the plaintiff in New York, notwithstanding the plaintiff had sued him in Rhode Island. The plaintiff, in defending against the New York suit, put in issue the same controversy which was in issue in the Rhode Island suit, and it was decided against him. Why should he not be concluded, and, if concluded, why should not the defendant have the benefit of the conclusion by plea puis darrein? If the judgment in New York had been recovered before the suit in *Page 413 Rhode Island, the defendant would certainly have been entitled to plead it. Indeed, such a judgment would be pleadable in bar if recovered in a foreign country, and a fortiori, under the federal Constitution and law, when recovered in a sister state. Ricardov. Garcias, 12 Cl. Fin. 368; Bissell v. Briggs, 9 Mass. 462;Mills v. Duryee, 7 Cranch, 481; 2 Am. Lead. Cas. (5th ed.) 611 etseq., where this subject is discussed, and the cases fully cited. The two cases of Baxley v. Linah, 16 Pa. St. 241, and NorthBank v. Brown, 50 Me. 214, are closely in point. In Baxley v.Linah, 16 Pa. St. 241, an action was commenced in Maryland, December 30, 1846; and in Pennsylvania, for the same cause, June 2, 1847. The defendant pleaded the prior pendency of the Maryland action in abatement to the Pennsylvania action, and the plea was overruled, the plea of prior pendency being available only when both actions are pending in the same state. Bowne et al. v. Joy, 9 Johns. Rep. 221; Walsh et al. v. Durkin, 12 Johns. Rep. 99. Subsequently, January 31, 1848, the plaintiff recovered judgment against the defendant in the Maryland action; and December 5, 1849, the defendant pleaded it in bar puis darrein continuance. The plaintiff demurred. The court, however, sustained the plea. The only material difference between that case and the case at bar is, that there the judgment was recovered first in the earlier case, here in the later. But the judgment, whenever recovered, is still a judgment; and why, then, is it not pleadable as such? In North Bank v. Brown, 50 Me. 214, the plaintiff commenced suit against the defendant in Maine, January 11, 1858; and in New York, for the same cause, January 21, 1858. Judgment was first obtained in the New York suit, and it was held to be a good defence to the suit in Maine. Here the judgment does not appear to have been specially pleaded; but if it had been specially pleaded, we see no reason why the decision would not have been the same. We think the first cause of demurrer is not sufficient. The second cause is that it does not appear that the New York suit was prosecuted by or for the defendant corporation, or by its authority, or for its benefit. The plea sets forth that the New York suit was prosecuted by *Page 414 George T. Hanford, as receiver of the goods and effects of the defendant, and avers that the parties are identical; meaning, doubtless, that they are in legal effect the same. We infer from this that, under the laws of New York, the receiver, for the purposes of his appointment, is virtually the corporation, and that therefore a suit by him as receiver is, in legal effect, a suit by the corporation. We the more readily infer that the law is so in New York, because it is so in this state. We think, when the judgment of a sister state is pleaded, we ought not to be too strict or technical; but that we ought to administer the law in a spirit of liberal comity, and to allow the plea every fair intendment, so as not to defeat the constitutional privilege of the judgment. If this suit were pending in New York, such a judgment would doubtless be a bar to it. We think, therefore, that the second cause of demurrer cannot be sustained. The third cause of demurrer is substantially the same as the second, and is for the same reason overruled. The fourth cause is, that the cause of action in the two suits does not appear to be identical. The plea avers that it is identical, and we do not find, from an examination of the judgment as pleaded, any sufficient reason to think it is not so. See Ricardo v. Garcias, 12 Cl. Fin. 368, 401. The plaintiff states in his brief that an appeal has been taken from the judgment rendered in New York. The plea, however, does not show this. Prima facie the judgment as pleaded appears to be final and conclusive. Upon demurrer, we can only know what the plea discloses. If the plaintiff desires us to decide upon the effect of the appeal, he should bring the fact of the appeal before us by proper pleading and proof. Upon the question whether the court can take cognizance of the New York law as to the effect of an appeal, unless pleaded and proved, see 2 Am. Lead. Cas. (5th ed.) 648 et seq. Demurrer overruled. After the foregoing opinion, the plaintiff replied to the plea puis darrein continuance: — 1. That the judgment of the Supreme Court of New York set forth in the plea had been appealed from, and that the suit wherein judgment had been given was consequently pending in the Supreme Court of New York. *Page 415 2. That the receiver Hanford acted without authority, and did not institute the New York suit in behalf of the defendant corporation but for himself. 3. That the cause of action in the New York suit was not that in the present case. All these replications concluded to the country. The defendant demurred to them all.