
    George W. Stamp, Resp’t, v. Augustus W. Franklin, as Executor, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed February 5, 1895.)
    
    1. Former adjudication—Husband and wife.
    An adjudication, in an action in which a wife is a party without her husband, does not bind him in a subsequent action for the same matter, to which he is a party.
    
      2. Same—Estoppel.
    The fact that the husband was a witness for his wife in the former litigation, in which she failed, creates no equitable estoppel.
    3. Husband and wipe—Contract between them.
    An authority given by the husband that payment for board may be made to his wife does not vest in her a legal title to the claim.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order which denied a motion for a new trial and ordered judgment in favor of plaintiff upon verdict directed by the court.
    
      William H. Smith, for app’lt; William T. Morris, for resp’t.
    
      
       Affirming 58 St. Rep. 608.
    
   Andrews, Ch. J.

This action was brought to recover for board furnished defendant’s testatrix from November 5, 1884, to January 10,1889, and on the conclusion of the evidence the trial judge-directed a verdict for plaintiff for the sum of $1,145.25, the value of the board at the rate of seventy-five cents a day. The complaint alleged that the plaintiff furnished the board at the request of the testatrix, and that thereafter he assigned the demand therefor to his wife, who re-assigned the same to the plaintiff. The answer contained a general denial of the complaint and also set up a former judgment in an action brought-by Edna M. Stamp,, the wife of the plaintiff, against the defendant, in bar of the action.. On the trial the court permitted the plaintiff to amend the complaint by striking out the allegations of assignment and re- assignment, and thereafter the action stood as an ordinary action to recover a demand for board furnished by him to the defendant’s testatrix. It appears that the plaintiff and his wife, in 1884, at the request of the testatrix, took up their residence in the house of Mrs. Douglass, the testatrix, and old and infirm lady, and thereafter she was furnished with board, and the plaintiff’s wife, during several years and until the death of the testatrix, took care of her, preparing her meals and rendering her such other service as her condition required. The plaintiff paid rent during the time.

The facts in respect to the former judgment are briefly these: In 1889, after the death of the testatrix, Edna M. Stamp, the wife of the plaintiff, brought an action against the executor for the board so furnished and for the services rendered, alleging in her complaint an indebtedness of the testatrix therefor of $8,119, and further alleging that she was a married woman and that by special agreement made between herself and her husband before the rendition of the services and the furnishing of the board, she was given by him her own time and whatever the board of Mrs. Douglass might be worth, and that she was thereby entitled to the claim therefor in her own right. The executor put in an answer denying the complaint. On the trial of the wife’s action, the plaintiff in this action (the husband) was a witness in her behalf to establish her claim. The wife recovered in her action, and was awarded by the referee the sum of $2,631.05, which included the sum of $1,445.25, for the board of Mrs. Douglass between the dates mentioned. On appeal, the general term modified the judgment by striking out the award for board, leaving the judgment to stand for the balance, and both parties acquiesced in the modification, and the judgment, as modified, was paid by the executor. The general term, in disallowing the claim for board, proceeded on the ground that presumptively it was furnished by the husband, and that there was no satisfactory evidence that the claim therefor belonged to the wife. Under these circumstances, it is plain that the prior judgment was no bar to the maintenance of this action. The plaintiff was not a party to the former action, and moreover the judgment, as finally rendered therein, was consistent with the claim in this action that the claim for board was a demand existing in favor of the husband. The judgment did not pass against the wife upon the ground that there was no indebtedness for board, but on the ground that the wife had not shown that the claim was enforcible in her favor. Even if the wife had been defeated in her action on the merits, the adjudication would not bind the husband, or bar his subsequent action to recover the claim in his own right, as the original creditor. Husband and wife are for most purposes distinct persons at law, and an adjudication in an action to which a wife is a party alone, without her husband, neither binds him in a subsequent action, to which he is a party, nor can he avail himself of the benefit of the adjudication on the ground merely that he was the husband. If, in respect to the subject-matter of the wife’s action, there was a privity between the husband and wife, he would be bound under the circumstances as a former judgment binds other persons, and not otherwise. Privity implies a relationship by succession or representation between the party to the second action and the party to the prior action in respect to the right adjudicated in the first action. When this exists the party in the second action is barred by an adjudication upon the right made in the first action. (Bigelow on Estoppel, 142 et ■seq.) There may be cases not coming within the strict rule of estoppel by judgment, where a person not a party will be bound. The husband was a witness for the wife in her action and by his testimony sought to establish her claim to the ownership of the demand for board. If the wife had finally prevailed upon this contention and recovered judgment for the board bill, there would be strong reason for holding him estopped in equity from subsequently asserting an independent right to recover the same demand, in repudiation of his own act and conduct in a former suit. It would be not only an imposition upon the court, but a detriment to the defendant if he could be permitted subsequently to recover again the same demand which he had aided his wife to establish in the first action. But in the former litigation the plaintiff failed, and the fact that the husband was a witness for his wife in that suit could create no equitable estoppel, because there was no injury. The mere fact that a person was a witness in a former litigation, does not bind him by the result of that litigation, nor does it in law conclude him from changing his testimony or making even an inconsistent claim in a subsequent action to which he is a party, and much less does it conclude him where the subsequent action is inconsistent with the judgment in the former one. (See Bigelow on Estoppel, 135, and cases cited in note.) We think the defense of a former adjudication was not sustained. The judge on the conclusion of the evidence directed a verdict for the plaintiff. Bach party asked a direction in his favor, and the motion on-the part of the defendant having been denied, he asked to go to the jury upon the questions whether the plaintiff was the owner of the claim for board, and whether he had not by agreement with his wife consented that the claim for board should belong to her. The defendant on the former trial defeated a recovery by the wife for the board bill, on the ground that presumptively the demand belonged to the husband. In the present action he seeks to defeat a recovery by the husband on the ground that it belonged to the wife. The defendant did not plead that the plaintiff was not the real party in interest, nor that the claim belonged to the wife. Savage v. Corn Ex. Co., 4 Bosw. 1; affd., 36 N. Y. 655 ; Smith v. Hall, 67 id. 48. But, moreover, we think there was not sufficient evidence to have justified the jury, if- the question had been submitted to them, in finding the claim belonged to the wife and not to the husband. There can be no reasonable doubt that the husband furnished the board. The most, we think, which the evidence tends to establish is that the husband authorized payment therefor to be made to the wife. This did not vest in her the legal title to the claim, .assuming that under the statute of 1860 an agreement by the husband that the title to the board money should vest in her would be valid. See Coleman v. Burr, 93 N. Y. 31.

There was no legal error committed on the trial and the judgment should, therefore, be affirmed.

All concur, except Haight,. J., not sitting. Judgment affirmed.  