
    Daniel Buhler et al., Pl’ffs, v. Charles E. Hubbell et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    
    Bes adjudicata — Does hot apply to matters expressly excluded.
    A judgment cannot be res adjudicata as to matters which it expressly refuses to decide, and leaves open to further litigation.
    Appeal by plaintiff Elbert Stannard from order confirming the report of a referee to whom was referred one of the issues in the action, viz. : whether a certain clause of the agreement had been abrogated.
    Action to enforce part of an agreement between the parties hereto for the disposition and sale of certain old vessels owned by them as tenants in common.
    A. It. Dyeil, for app’lts; Wm. 6r. Tracy and Pay son Merrill, for resp’ts.
   Barnard, P. J.

The agreement between the parties contained this clause, “ Hubbell and Porter are to pay fifteen hundred dollars as a bonus to Captain Sherwood for taking charge of the breaking up of the ships.”

. It was claimed by Hubbell and Porter that this clause was abrogated. The original judgment for distribution of the fund and settling rights of the parties in other respects left this question open,, and it was referred by agreement to hear and determine. The referee found the clause abrogated and the report was confirmed and final judgment entered thereon. It appears that Hubbell and Porter commenced an action in Onondaga county against the present plaintiffs and others in - respect to the same property referred to in this agreement, and their complaint was dismissed on the merits. This clause was not actually litigated, and the judgment as amended, provided that the question of abrogation of this clause be left open and neither party be prejudiced by the judgment given. The original judgment was rendered in September, 1885, and the modification made in June, 1887. Both the judgment in Kings county and the Onondaga judgment left open this question and neither party appealed from the order of reference in Kings county.

The question is not res adjudicata. The parties were not the same. The adjudication of the $1,500 clause was not actually litigated in either action. Neither party appealed from either judgment as modified by leaving open this clause for future debate and contest No case I think holds that pleadings in an action broad enough to permit a litigation on a certain question which was not made, and when the judgment leaves the question open, is subject to the rule of law that a judgment binds parties and privies, not only as to facts actually litigated, but also as to those facts which might have been litigated in the action. The case is not one where the special term arrested a judgment Dending appeal, as was the case in Genet v. Delaware & Hudson Canal Co., 113 N. Y., 472; 23 N. Y. State Rep., 111, nor like Bostwick v. Abbott, 16 Abbott’s Pr., 417, where a judgment was a bar tc a new action on the merits, but the court ordered that the judgment should not -prejudice a new action.

Here the judgments are so drawn as to leave out the very sub ject involved in the present proceeding. The judgment cannol be res adjudicata as to those matters it refuses -to decide, anc neither party appeal from the determination. The evidence sup ports the finding as one of fact. The consideration for the abro gation of the clause was that Hubbell and Porter should induce one Cleary, who had a joint interest with the parties, to sell on the same to the plaintiff Sherwood. Hubbell so testifies: “ Tbej were willing to abrogate or cancel the clause, * * * if we

should go to work in good faith and help them out of their trouble with Cleary.”

The witness Porter stated that “the $1,500 clause was no thoroughly understood to be abrogated.”

A witness, Smith, testifies that he heard Buhler say to Sherwood that the $1,500 clause had been abrogated.

Another witness, one Richards, testifies that he heard Sherwooc claim that the agreement, except the $1,500 clause, was still ir force. There is direct proof going to sustain the clause, and t strong inference for the unreasonableness of the agreement whicl was the consideration of the new agreement destroying the clause.

The case on appeal is subject to the rule as to findings ofjact, The dispute, when the testimony is so conflicting as it is in this ;ose, must be decreed settled by the finding of the trial court therein.

The order appealed from should, therefore, be affirmed, with ;osts.

Dykman and Pratt, JJ., concur.  