Davis v. Bonn

Conlan, J. Appeal from a judgment entered on the verdict of a jury by direction of the court, and from an order denying a motion for a new trial. This action was commenced to recover the sum of $400 claimed to be due the plaintiff under and by virtue of a certain bond executed by the defendant to the plaintiff. The bond refers to an agreement between the jiarties, and it is for a breach of one of the covenants of this agreement that plaintiff claims to recover the amount stipulated in -said bond. The terms and conditions of said agreement material to this case are as follows : “First. The said party of the second part (meaning defendant), in consideration of one dollar and other good and valuable consideration, does hereby agree to employ none but members in good standing of the said party of the first part. “Second. That in consideration of the agreement herein [332] above the said party of the first part (meaning plaintiff) does hereby agree to furnish, upon demand of the said party of the second part, a sufficient number of workingmen, members of the corporation aforesaid, party of the first part.” The answer of the defendant admits the making of the bond and agreement, and alleges a breach of plaintiff’s covenant to supply workingmen to the defendant. Plaintiff introduced the bond and agreement, and evidence that on the 13th day of November, 1894, and • about one month after the making of said bond and agreement, the defendant was not employing men supplied by the plaintiff. The evidence of the defendant shows that he is a manufacturer of garments; that on the 31st day of October, 1894, one Morris. Greenberg was working in his shop with several others supplied by the plaintiff, when a dispute arose between said Greenberg and defendant which resulted in Greenberg leaving the shop of the defendant. Shortly afterwards, and on the same day, a Mr. Schoenfeldt, who was the walking delegate of the plaintiff, called at defendant’s shop and took away all the men furnished by the plaintiff to the defendant. Subsequently, and on the seventeenth day of November then next, one Bannon, as assignee of Greenberg, commenced an action in the Seventh Judicial District Court to recover his (Greenberg’s) week’s wages from the defendant, on the ground that he had been wrongfully discharged. The defendant answered that he (Greenberg) unjustly left his employ, and that he was willing to retain him. Judgment was entered against the defendant for the amount claimed. On the trial of this action the defendant undertook to show that he had not violated the terms of the agreement by arbitrarily discharging or refusing to employ workmen furnished by the plaintiff, whereupon plaintiff’s counsel offered in evidence the judgment roll' in the District Court action as res adjuclicata of the wrongful discharge of Greenberg by defendant. [333] Defendant’s counsel objected to the introduction of the roll as not binding on the defendant. The objection was overruled, ano. the court said in admitting it: “ The Court.— In this case there- cannot be any question but that all of the issues embraced, in the pleadings in that action is res adjudicada, so far as this action is concerned; therefore, it must appear that if this man discharged him without cause, and if he had no justifiable reason for discharging him, he could not have recovered. Bannon could not have recovered until he first proved his cause of action. [Exception taken by defendant.]” The subsequent rulings of the court were all consistent with the view he entertained of the admissibility and pertinence of the roll. It will, therefore, not be necessary to discuss the rulings and exceptions in detail. The court in directing a verdict stated clearly his reasons for excluding testimony as to what occurred between Green-i berg and defendant, and also between defendant and plaintiff, respecting the employment of men under the agreement as follows: “ The Court.—■ I will direct a verdict in favor of the plaintiff, and give you my reasons. “ In this case, under the contract made between the plaintiff and the defendant, the defendant was to employ- all members of the plaintiff’s union against whom the defendant could have no reasonable or proper objection, either as to their competency or their willingness'to do the work, or carry out any contract that was made with them. “ The sole complaint of the defendant in this action is directed against the alleged misconduct of Hr. Greenberg. “ Testimony of that character is inadmissible in this action for the reason that it was determined in the -action of Bcmnon against Boon' in the Seventh District Court, which judgment roll is marked in evidence here; it was determined by reason of the issues in that action that Greenberg was a faithful [334] workman and performed Ms contract, whatever it was, with the defendant.” We think the admission of the judgment roll was error. It was not between the same parties nor are the claims of the same character. It will riot be contended that if the judgment had been in favor of the defendant it would have coricluded the plaintiff in an action on the bond; there was, therefore, an entire lack of mutuality necessary to make the judgment res adjudicate/, •or as an estoppel of record. In Malsky v. Schumacher, 7 Misc. Rep. 8; 56 N. Y. St. Repr. 840, the court says: “ An estoppel to be effectual must be mutual.” In Furlong v. Banta, 80 Hun, 248, Judge Herrick, in writing the opinion, says: “ To render a judgment roll admissible in evidence for the purpose of concluding the parties as to the facts litigated in the former action, it is not sufficient that the facts or issues should be the same in both actions. In addition thereto, the parties in the second action must have been parties in the first action or their privies, and the judgment therein conclusive as to both parties.” See Booth v. Powers, 56 N. Y. 33; Collins v. Hydorn, 135 id. 320. The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. Van Wtok and Hewburger, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.