Haye v. Borated Specialty Co.

Delehanty, J. This action is instituted to recover the sum of $875 for a breach of contract of personal employment. On or about the 6th day of August, 1907, it is claimed plaintiff and defendant entered into an agreement whereby the defendant hired and employed the plaintiff as a traveling saleslady for a period commencing on said day and terminating on the 5th day of August, 1908, at a salary of $25 per week, together with traveling expenses. On ¡November 30, 1907, the plaintiff, as claimed, was unlawfully discharged, and this action was begun to recover damages for the breach of said contract. On or about the 26th day of December, 1907, the plaintiff herein instituted an action against the defendant herein in the Municipal Court of this borough to recover the sum of $150 salary due plaintiff under the contract in question, from October 19, 1907, to ¡November 30, 1907, the date of discharge above mentioned, and also to recover $32.80, being the amount laid out and expended by plaintiff for traveling expenses above the amount received by her prior to her alleged discharge. By stipulation a judgment was entered in that action on January 14, 1908, in favor of plaintiff and against defendant for $182.80. Defendant now applies for leave to amend its answer herein by pleading the Municipal Court judgment in bar of this action. The motion cannot prevail for the reason that if the defense of res adjudicata, were pleaded it would be unavailable to defendant, as the actions are dissimilar in nature. The Municipal Court action was for salary and money laid out and expended prior to the alleged discharge, whereas the action at bar is for damages for a breach of contract. To sustain a plea of a former judgment in bar it must appear that the cause of action in both suits is the same, or that some fact essential to the maintenance of the second suit was in issue in the first action and was decided adversely to plaintiff. The bare fact [511] that two causes of action spring out of the same contract does not ipso facto render a judgment on one a bar to a suit on the other. Perry v. Dickerson, 85 N. Y. 345. It follows that the motion must be denied, with ten dollars costs. Motion denied, with ten dollars costs.