Dry Dock, E. B. & B. Railroad v. North & East River Railway Co.

PRYOR, J. On the 15th February, 1890, the plaintiff, for a stipulated rental of $1,500 a year, payable quarterly in advance, let to the defendant the privilege of running its cars on plaintiff’s railroad tracks, “payments commencing frqm the time the said party of the second part shall exercise or avail itself of the consent and privilege hereby given.” On an allegation of a default by defendant to pay an installment of rent due 1st of December, 1891, plaintiff brought, this action to recover $375. Putting in evidence the agreement called a “lease,” and a former judgment between the parties, plaintiff rested; and thereupon defendant moved to dismiss the complaint, for defect of proof of liability under the lease, and of rent due on the 1st of December. Upon denial of the motion the defendant offered no evidence, and the court directed a verdict for the plaintiff. Appellant’s contention that no right of recovery was shown, is clearly untenable. In a former action between the same parties upon the same instrument plaintiff recovered an installment of rent “which became due on the 1st day of March, 1891, in advance for the quarter then commencing.” This judgment conclusively established defendant’s liability under the lease, and that an installment ni rent fell due on the 1st of March. As by the terms of the lease the rent 557 was payable quarterly in advance, and by the judgment a quarter’s rent became due on the 1st of March, the inevitable result was that another installment was payable on the 1st of December. “The estoppel of a former judgment extends to every material matter within the issues which was expressly litigated and determined, and also to those matters which, although not expressly determined, were comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. It is not necessary that issue should have been taken upon the precise point controverted in the second action.” Manufacturing Co. v. Walker, 114 N. Y. 7, 20 N. E. Rep. 625; Lorillard v. Clyde, 122 N. Y. 41, 25 N. E. Rep. 292. The efficacy of the former judgment was not impaired by the fact that it was taken by default. Brown v. Mayor, 66 N. Y. 385; Bullard v. Sherwood, 85 N. Y. 253; Gates v. Preston, 41 N. Y. 113; Newton v. Hook, 48 N. W. 676. Appellant contends nevertheless that the corporate capacity of the plaintiff was not proved on the trial. Assuming this fact not adjudicated by the former judgment, still the objection is unavailing, since the answer contains no affirmative allegation that the plaintiff is not a corporation. Code, § 1776. Again, appellant insists that there was no evidence of default in the rent, but the complaint alleges its nonpayment, and the answer, simply a denial, raises no issue as to the fact. Lent v. Railway Co., 130 N. Y. 504, 29 N. R. Rep. 988. Judgment affirmed, with costs. All concur.