
    William W. Carlin, App’lt, v. Charles Richardson, Resp’t.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed July 13,1888.)
    
    1, Judgment—How far conclusive.
    A judgment is only conclusive upon the point which it professes to decide and of matters which it was necessary to decide, or which were necessarily embraced within the issues.
    3 Same—When not a bar to another action.
    The defendant herein brought an action against the plaintiff herein to-recover certain money paid on a contract, alleging a breach in the performance of the contract. The defendant in that action admitted the payment of the money and the demand for repayment, but set up that it was paid for work, labor and services, and denied all the other allegations in the complaint. This action was brought to recover the balance due under said contract for work, labor and services. Held, that the other action was not a bar to this action. That the defendant in that action (the plaintiff in this) was not bound to plead the unpaid sum due upon the contract and ask for an affirmative judgment. That he might do so or he could resort to a cross action to recover them.
    Appeal from a judgment of nonsuit rendered by the municipal court of Buffalo.
    
      Howard & Clark, for app’lt; Fitch & Braunlein, for resp’t.
   Hatch, J.

This action was commenced in the municipal court of Buffalo to recover the balance due upon a contract to furnish plans and specifications for a house and barn to be erected upon defendant’s premises. The preparation of the plans and specifications was alleged in the complaint; that the services were reasonably worth the sum of $435; that there had been paid thereon the sum of $135, leaving a balance due of $300, for which judgment was demanded. The defendant joined issue, and filed an answer, in which, among other things, he plead as a bar the pendency of another action in the supreme court between the same parties for the same cause of action as set forth in the pleadings in this action. Upon the trial, it was admitted by plaintiff that an action was pending at the time of the commencement of this_ action, in the supreme court, in which the defendant herein is plaintiff, and the plaintiff herein is defendant. It was further admitted that the $125 referred to in plaintiff’s complaint herein was the same as referred to in the complaint in the action in the supreme court, and that the plans and specifications referred to in both actions are the plans and specifications forming the subject of litigation in both suits. Therefore the judge entered judgment of nonsuit against plaintiff. The return is extremely meagre and unsatisfactory. "While the complaint in the supreme court was introduced in evidence, yet it was not returned, nor can it be gathered from the return what the issues in the supreme court were, nor what defense the answer interposed. From the statement of counsel upon the argument, and from the briefs submitted, in which they seem to agree, it appears that in the supreme court, plaintiff alleged in his complaint s breach of contract upon the part of the defendant, in failing to furnish the plans and specifications contracted for, and sought to recover back the $125 paid to defendant on account thereof. The defendant therein admitted receiving the $125; also, the demand of repayment and refusal to pay; then alleged that the money was paid for work, labor and services performed in preparing the said plans and specifications. For a second answer, defendant denied all the other allegations in the complaint. Treating this as the issues between the parties, it is clear that the pendency of the action in the supreme court was no bar to maintaining this action.

The plaintiff, in that action, in order to entitle himself to recover, was bound to show a non-performance of the contract upon defendant’s part; if he failed in that, then he failed in his action, and his complaint would be dismissed; but under the issues, the defendant would not become entitled to an affirmative judgment for the balance remaining unpaid upon the contract; in the event of plaintiff’s refusal to pay such balance, defendant could maintain an action to recover it. A judgment is only conclusive upon the point which it professes to decide, and of matters which it was necessary to decide, or which were necessarily embraced within the issues. Kerr v. Hays, 35, N. Y., 331; Tusha v. O’Brien, 68, id.,446.

The only propositions necessary to a determination in the supreme court action, was the payment of the money upon the contract, a non- performance of it, and a demand, and refusal to repay. But the refusal in these respects in nowise determined the right of the defendant therein to recover the value of his services remaining unpaid, nor did it, or could it, under the issues, determine whether he was or was not untitled to recover anything more of plaintiff, unless the plaintiff succeeded, when the judgment could be plead in bar. The fact, however, that a recovery upon the part of the plaintiff in the supreme court, when plead, would constitute a bar to defendant’s action, is of no importance, for the reason, that when the action was commenced, it had no existence. The defendant was not bound to plead the unpaid sum due upon the contract and ask for an affirmative judgment in the supreme court action; he might do so or he could resort to a cross action to recover them. Gillespie v. Torrance, 25 N. Y., 306. Inslee v. Hampton, 8 Hun, 230.

The contention of defendant, that plaintiff’s claim, is not a counter-claim, is without foundation; it falls squarely within the definition of the Code.

Code Civil Procedure, § 501, subd. 1. 7 Wait’s Actions and Defences 530.

The case of Brown v. Gallaudit, 80, N. Y., 413, is therefore decisive of the present case, as are many others. The judgment should be reversed, with costs.

Titus, J., concurs, Beckwith, Oh. J., dissents.  