
    The United States Fidelity & Guaranty Co., Respondent, v. Max Schiff and Gus Moos, Appellants.
    (Supreme Court, Appellate Term,
    May, 1907.)
    Former adjudication—Adjudications operative as bar or as conclusive evidence — Rule that former judgment must have been on the merits — Judgment dismissing complaint—At close of all the evidence.
    Where, in an action by a corporation, the complaint is dismissed for want of proof of the certificate of the Secretary of State, required by chapter 538 of the Laws of 1901, the judgment of dismissal does not preclude the plaintiff from bringing a second action and upon the trial thereof producing such certificate.
    Appeal by the defendants from a judgment, rendered in favor of the plaintiff in the Municipal Court of the city of New York, first district, borough" of Manhattan.
    Louis H. Moos, for appellants.
    Daniel S. O’Brien, for respondent.
   Per Curiam.

The complaint alleged the making of a certain contract for a subscription to a reporting agency, controlled and owned by the plaintiff. It further alleged full performance on the part of the plaintiff and failure to perform on the part of the defendants. The answer set up a general denial and, for a second and separate defense, a prior adjudication between the' same parties for the same cause of action. Defendants claim that this prior judgment, having been affirmed by the Appellate Division, Second Department, acted as a bar to the bringing of the present action. At the close of plaintiff’s case the defendants did not move for a dismissal, although the case was submitted on plaintiff’s evidence alone and judgment was given in its favor. The decision given at the previous trial was as follows: “ Decided on the ground that ho certificate was filed with the Secretary of State as required by chapter 538 of the Laws of 1901., Judgment for the defendants, dated this 11th day of April, 1906. J. C. Kadien, Justice.” Upon the second trial the plaintiff offered in evidence a certified copy of its authority to do business in this State. We do- not think that plaintiff was precluded from bringing a second action. Estoppel of an' adjudication, made on grounds purely technical and where the, merits could not come in question," is limited to the point actually decided and will not preclude a subsequent action brought in a way to avoid the objection which proved fatal in the first; and, when a suit fails in consequence of want of jurisdiction and not from any inherent defect, the substance of the case is left at liberty and may be made the subject of another action. Marsh v. Masterson, 101 N. Y. 401, 407. The second action could properly be brought on the performance of the requisite preliminary act, i. e., the obtaining of the authority in question. Rose v. Hawley, 141 N. Y. 366, 375. It may be observed, moreover, that the defendants, in the case at bar, made no objection to the introduction in evidence of the plaintiff’s authority to do business in this State, above referred to. The former decision cannot be regarded as a judgment upon the merits, as it was based upon a purely technical defect, and the case of Rossow v. Burke, 52 Misc. Rep. 118, has no application.

- The judgment should be affirmed, with costs.

Present: Gildersleeve, Seabury and Brady, JJ.

Judgment affirmed, with costs.  