
    In re SAMUELS.
    (Circuit Court of Appeals, Second Circuit.
    January 14, 1920.)
    No. 93.
    1. Judgment <§=»585(2) — Matters concluded by former judgment, if same EVIDENCE WOULD SUPPORT BOTH ACTIONS.
    Whether an action is barred by a former judgment is not determined by the particular relief asked for in the two suits, but by whether the same evidence would support both actions.
    2. Bankruptcy <®=136(2) — Order denying right of trustee to insurance POLICY CONCLUSIVE.
    An order denying petition of a trustee to require bankrupt to deliver up a policy of life insurance or pay its surrender value held a bar to a later application to require him to surrender the policy or pay its loan value.
    Petition to Revise Order of the District Court of the United States for the Southern District of New York.
    In the matter of Elias W. Samuels, bankrupt. On petition by Samuel C. Cohen, trustee, to revise an order of the District Court.
    Affirmed.
    The bankrupt was the insured in a policy of life insurance. In 1915 this trustee petitioned that the bankrupt deliver up the policy or pay its surrender value as a condition of keeping the same. Bankruptcy Act, § 70a5 (Comp. St. § 9654). This was denied, and order entered accordingly, which order stands uureversed. In 1919 the trustee filed another petition, demanding that the policy be surrendered, or that the bankrupt pay over the loan value thereof. This was denied on the ground that the former order barred petitioner. Thereupon the trustee brought the matter here for review.
    Lawrence B. Cohen, of New York City (Adolph Boskowitz and Jacob Shientag, both of New York City, of counsel), for trustee.
    Samuel Sturtz, of New York City, for bankrupt.
    Before WARD, HOUGH, and MANTON, Circuit Judges.
   HOUGH, Circuit Judge.

The order under review must be affirmed, and for reasons illustrating how legal rules sometimes overlap. A bankruptcy adjudication is final, and has the attributes of a final judgment or decree (Hargadine, etc., Co. v. Hudson, 122 Fed. 232, 58 C. C. A. 596), and the order of 1915 had similar finality. The general rule regarding a judgment pleaded as res ad judicata, we have recently restated in Sullivan v. Nitrate, etc., Co., 262 Fed. 371 (filed December 10, 1919).

The present endeavor to escape therefrom consists in acknowledging the rule in all its fullness, but urging that the matter now advanced was not within the issues tendered and framed in 1915, and therefore could not have been tried, or at any rate not properly tried. But to discover what could have been tried and adjudicated one must go farther. The test of identity suggested is to ascertain what in the earlier case the suitor asked for. But that is misleading, and the surest test is to discover whether the same evidence would support both actions. Freeman, Judgts. § 259.

Here the only evidence suggested or possible in either proceeding is the policy of insurance; all the rest is argument. The petitioner confounds remedy and relief; his remedy was not changed, but the kind of relief obtainable now depends on the ruling in Cohen v. Samuels, 245 U. S. 50, 38 Sup. Ct. 36, 62 L. Ed. 143, decided after the first application. The present petition is an endeavor to get, by correcting the law of 1915, what under current decisions the evidence could not then yield. This will not do; a decision erroneously made is as effective as the best, until reversed.

Another view is this: There never was a time when the insured could get both the loan value and the surrender value on this polic).. The demands are mutually destructive. The trustee here stands in the shoes of the bankrupt insured; he elected to sue for the surrender value in 1915, and was defeated. The judgment then rendered is a bar to a later action for the alternative. This ruling rests rather on the doctrine of election of remedies, than that of res adjudicata, but is equally suitable here. Freeman, Judgts. § 256, especially Patterson, v. Wold (C. C.) 33 Fed. 791. There was a plain choice made by the trustee in 1915; that he thought it was Hobson’s choice is immaterial. Cf. Doyle v. Hamilton Co., 234 Fed. 47, 148 C. C. A. 63; Bogert v. Southern Pacific Co., 244 Fed. 61, 156 C. C. A. 489, affirmed on this point, 250 U. S. 483, 39 Sup. Ct. 533, 63 L. Ed. 1099, June 9, 1919.

Order affirmed, with costs.  