Stecher v. Independent Order Free Sons of Judah

Bischoff, J. To an action upon a benefit certificate issued by defendant-association, the defense of a former adjudication was interposed, and upon the trial, the defendant offered iri evidence the original summons in an action between these parties, admittedly' upon the same cause of action, on which summons appeared the indorsement of the decision by the justice of the Ninth Municipal Court: “ Judgment for defendant dismissing plaintiff’s complaint.” This paper was admitted in evidence, and defendant then offered a conceded copy of the minutes of the proceedings had before the justice in such action, for the purpose of showing that the judgment was rendered for a dismissal of the complaint upon the merits. The minutes were excluded under exception, and, thereafter, both sides having moved for a direction of a verdict, the justice directed a verdict for the plaintiff. In general, the scope of- an adjudication in the Municipal Court may be determined by resort to the minutes of the trial, in view of the informality of the pleadings and proceedings in that court (Seed v. Johnston, 63 App. Div. 340), and, it being conceded in this case that the minutes offered afforded competent proof of the fact of what took place at the trial, the exclusion of the evidence must find its justification, if at all, in the provisions of section 1209 of the Code of Civil Procedure, which provides that “ A final judgment,, dismissing the complaint, either before or after a trial, rendered in an action thereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment-roll, that it is rendered upon the merits.” If this,section applied to a judgment of the Municipal Court, no proof, apart from the judgment-roll itself, would be admissable for the purpose of adding the words “upon the merits,” or words of similar purport to what the judgment-roll expresses, since the statute makes the .judgment-roll conclusive, but this section, which [342] is" a part of article I of title I of chapter II of the Code of Civil Procedure, is expressly limited in its application to judgments rendered by the Supreme Court, the City Court of New York, or one of the County Courts. Code Civ. Pro., § 3347, subd. 8. The question, therefore, as to whether the judgment of the Municipal Court was, or was not upon the merits, was a matter for proof in thé ordinary course, and the judgment-roll was not necessarily conclusive. Our conclusion is that error was committed in the exclusion of the minutes of the trial had before the justice of the Municipal Court, and that there must he a new trial. Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event. Freedman, P. J., and Fitzgerald, J., concur. Judgment and order reversed and new trial ordered, with costs to appellant to abide event.