
    ALCOLM CO. v. PHILIP HANO & CO.
    (Supreme Court, Appellate Term.
    December 11, 1906.)
    Judgment—Res Judicata.
    Plaintiff sued for two items of $90 and $40 for services. Pending the action be brought a second action for the two items and a third item of $20. The second action was tried first, and resulted in a judgment for defendant, which on appeal was reversed and a new trial ordered. Pending the appeal, the first action was tried and plaintiff recovered for the $40 item only. On a new trial of the second action, defendant pleaded the judgment as res judicata to the claim for the $90 and $40 items. Held, that a judgment for plaintiff should have been limited to a recovery on the third item only.
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by the Alcolm Company against Philip Hano & Co. From a judgment for plaintiff, defendants appeal. Reversed, on condition.
    See 96 N. Y. Supp. 221.
    
    Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.
    
      Stillings & Taylor, for appellant.
    H. V. Boyer, for respondent.
   DAVIS, J.

Plaintiff recovered judgment upon three separate items, $90, $40, and $30. The defendant made a written agreement with plaintiff to pay these amounts for certain advertising. The $90 item and the $40 item had been made the subject of a former suit in this same court, and, notwithstanding its pendency, the plaintiff brought this present action June 6, 1905, for the recovery of the same items, together with an item of $30, also the subject of a written agreement for like service. Upon the trial of this latter action, judgment was rendered for the defendant upon its plea of former action pending. The plaintiff appealed, and the judgment was reversed, with a new trial. But, while this appeal was pending and undetermined, the plaintiff moved the former action for trial. He recovered judgment for the $40 item only.

We must conclude, from an examination of the record of that trial, that the court found for the defendant on the $90 item and that these findings were made on the merits. This judgment was rendered September 36, 1905, which was prior to the reversal of the judgment in this present action by the Appellate Term. The Appellate Term ordered a new trial of all the issues involved. The new trial was had, and the defendant pleaded the judgment in the former action as a bar to any recovery for the $90 item. It also claimed that the judgment was res adjudicata as to the $40 item, and that therefore the only issue to be tried in this present action was the $30 item. All the issues were tried in accordance with the direction of the Appellate Term. The defendant fully sustained its defense of res adjudicata as to the $90 item and the $40 item, and the judgment below should have been limited to $30 only.

Judgment reversed, with costs to the appellant, unless the plaintiff agrees to reduce the judgment to $30, with interest thereon and simple costs—not extra costs. The judgment, if thus modified, will be affirmed, without costs. All concur.  