Barnard, P. J. The defense pleaded in the fourth subdivision of the answer is not good. On the 2d of May, 1883, Charles Bamford and Edwin Bamford leased certain mining property to the defendant. The lease was to run 10 years. The rent was to be controlled in amount by royalties on the ore removed from or used on the premises. These royalties were to be ascertained for and paid quarter-yearly.
It was provided that if the royalties fell below $1,000 iu any one year the defendant was to pay a sum in addition to the royalties which should make the royalty amount to the sum of $1,000. During the years ending May 2, 1887,1888,1889, and 1890 the defendants did not use ores to such an amount that the royalties amounted to $1,000, and in each of these years the defendant has paid nothing, either for royalty or for deficiency up to the $1,000.
The plaintiff is the assignee of the Bamfords, and seeks to recover the $4,000 due upon the lease. The defendant, by the fourth 450 defense, avers that the Bamfords commenced an action in the United States circuit court on the 5th of June, 1885, and recovered a judgment for $3,201.58, (33 Fed. Bep. 677,) which is still pending on appeal, and, until reversed, is a bar to the present claim. It is no bar whatever.
The rent reserved was not due when that action was commenced, and if it is reversed it will result in two actions pending for installments of rent maturing at different times, and when the last installments sued for were not due when the former action, was brought. To make a judgment a bar it must apparently appear by the pleading that the judgment was conclusive in the cause of action. Bell v. Merrifield,109 N. Y. 202, 16 N. E. Rep. 55.
Judgment reversed, and demurfer.. sustained, with costs to plaintiff on special and general term.
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