
    International Paper Company, Respondent, v. Fred E. Purdy, Appellant.
    Third Department,
    December 3, 1909.
    Judgment — when bar to subsequent action for same cause.
    The test for determining whether a judgment in one action is a bar to or evidence in another action is whether substantially the same evidence would establish the cause of action in each case.
    
      A prior judgment in favor of a defendant in an action for treble damages for tres-' pass.in cutting timber, wherein the defendant asserted title, is a bar to a subsequent action by the same plaintiff against the same defendant for cutting timber upon, the same land and selling the same to the plaintiff through an agent. . • . '
    Séwell-and Chester, JJ.., dissented, with opinion.
    Appeal, by the defendant,. Fred E. Piirdy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 21st day of November, 1908, upon the verdict of a jury, and also from .an order, entered in said clerk’s-office on the same-day, denying the defendant’s' motio'n for a new'trial made, upon the minutes.,
    
      L. L. Shedden and & L. Wheeler, for the appellant.
    
      Thomas B. Cotter, for the respondent.
   Kellogg, J. :

The question for review is whether a judgment in a former action-by the same -plaintiff against the same defendant prevents a recovery in this action. Upon the trial of the former action the court directed a verdict in favor -of the defendant,' and judgment was entered thereon dismissing the plaintiff’s complaint, with costs.The complaint in that action alleged that the plaintiff owned lot 230 and that the defendant wrongfully, unlawfully and without right or authority, entered thereon, and cut and carried away and caused to be cut and removed therefrom and converted to his own use and benefit, timber, logs and wood; that at the time of such cutting and conversion by the defendant, the timber, logs and wood so cut were of the value of. $1,962.75 standing,, and on account of such wrongful acts of the defendant committing waste upon the plaintiff’s land, lie became liable to pay therefor the amount of its actual damage, such actual damage being $1,962.75, and demanded judgment for three times that amount, with costs. The pleader evidently sought to recover treble damages under sections 1667 and 1668 of the Code of Civil Procedure, under which sections, how ever, if the acts are casual or involuntary, or. the- defendant believed the land his. own, single damages only may be awarded. The amount of damages claimed was based solely upon the value of the timber, logs and wood cut. The answer was a general denial, and the allegation that the timber, logs arid wood were cut upon the defendant’s land, and that if any were cut upon the plaintiff’s-land it was by mistake and a misunderstanding as to where the true line between the plaintiff and the defendant actually was.

The complaint in this action alleges that the plaintiff is the owner of lot 230; that the defendant, without the plaintiff’s knowledge or consent, caused to be taken therefrom timber and wood belonging to the plaintiff, which was wrongfully cut therefrom. It further alleges that some of the timber and wood had been delivered by the defendant to the plaintiff under a contract, the plaintiff not knowing the same had been taken from its land; and further alleges that at the same,time said wood was cut and delivered to plaintiff by a contractor in the employ of the defendant, other wood was likewise cut from the plaintiff’s land by said contractor in the employ of the defendant, and delivered to and received .at the defendant’s mill, and was used and disposed of by him. The plaintiff expressly waives the tort and- all causes of action therefor, and alleges that by reason of the facts stated the defendant is indebted to it either for money's had and received or upon an implied contract for the value of the wood, and demands judgment for the 'amdunt thereof.

It is conceded that the lands, the cutting and reihoVál of timber, logs and wood mentioned in both complaints are the same. The summons, complaint, answer, clerk’s minutes and the judgment in the former action are in evidence, and from them alone and the proceedings in this action we are 'to determine whether that judgment prevents a recovery in this case. The witnesses sworn upon the first trial, as appears from the minutes of the clerk, were substantially all called upon this trial, and the witness- Gardner upon this trial, who hired and directed the men who did the cutting, was sworn upon both trials, and is evidently the person referred to in the complaint herein as a contractor in the employ of the defendan t. The evidence in this case does not tend to show that the defendant is not responsible for the acts of Gardner, and we can find nothing in the record in this case tending to show a cause of action in favor of the plaintiff which would not equally tend to show a cause of action in the other case.

A familiar test in determining whether a judgment in one action is a bar tó ór evidence in another action is whether substantially the-same evidence would establish the cause of action in each ease. In each, action it was'necessary, for the plaintiff to establish its title to the land, that the defendant wrongfully cut the timber therefrom, and the value of the timber. In the present action it was unnecessary to show- that the timber and wood wrongfully cut by the defendant were sold to the plaintiff, for if the timber was wrongfully cut. upon, the plaintiff’s land the defendant is’liable to the plaintiff therefor without regard to whom the defendant sold it. • In the first action .it was determined, that the plaintiff was not entitled to recover of the defendant the value of the timber and wood alleged to have been cut by. him upon the premises in question. While that adjudication stands there can be no recovery upon the facts, disclosed here for the same timber and wood in another - action by simply changing the form-of the complaint.' The first, action was in form a trespass upon real estate by cutting and' removing timber and-wood therefrom and converting the same to defendant’s use, in which the-only damages asked were based upon the value of the timber and wood cut and removed. This action and recovery are based upon the idea that the defendant wrohgfully trespassed .upon the plain tiff’s land, cut, removed and converted its -timber and wood and that the -tort is waived and recovery is sought only for the'value of the timber and wood. The evidence would warrant a recovery in either case.

The judgment and order should, therefore, be reversed upon .tlie law and the facts, and a new trial granted, with costs to the appellant to abide the event..

AH. concurred, except Sewell, J., disse'nting in an opinion, in ' which Chester, J., concurred.

Sewell, J. (dissenting):

I dissent. It is well settled. that the conclusive character of a judgment extends only to the precise issues which were tried in the former action ; that they must be identical in each action, not merely in name, but in-fact and in substance, and that a party seeking to avail lnmself of a former judgment as conclusive evidence' or- as a bar in' a subsequent action, must show affirmatively that the question involved in the second action was material and actually determined in the former. (Stowell v. Chamberlain, 60 N. Y. 272; Reynolds v. Ætna Life Ins. Co., 160 id. 635.)

A former judgment is final only as to facts which were actually litigated and decided and which have such a relation to the issue that their determination was necessary to its determination. (Stannard v. Hubbell, 123 N. Y. 520 ; Matter of Locust Ave., 185 id. 115.)

It does not prevent a relitigation of a fact put in issue by the pleadings and litigated and decided in a prior action, if the fact was irrelevant to the issue therein and did not enter into and was not involved in the final judgment. (Springer v. Bien, 128 N. Y. 99 ; Stokes v. Stokes, 155 id. 581.)

“ ‘Although a decree in express terms purports to affirm a particular factj or rule of law, yet if such fact or rule of law was immaterial to the issue, and the controversy did not turn upon it, the decree will not conclude the parties thereto.’ ” (Stokes v. Foote, 172 N. Y. 341.) Applying the principles of these decisions to the question presented it is obvious that the former judgment is not a bar to the maintenance of this action, or evidence upon the questions in issue: .

In the former action there was but one cause of action stated in the complaint. That cause of action was not for conversion but for trespass. The only question necessarily determined therein was, that the defendant did not wrongfully enter upon the plaintiff’s land and cut down and carry away the wood, trees and timber standing thereon. If the allegation of conversion had been omitted there would have been an ample statement of facts constituting a cause of action for trespass and its insertion did not change or affect the nature of the action. (Graves v. Waite, 59 N. Y. 156; Greentree v. Rosenstock, 61 id. 583; Tuers v. Tuers, 100 id. 196.) The plaintiff could have admitted upon the trial that the defendant did not convert any of the wood, trees or timber, and yet, if he had proven the other allegations of the complaint, he could have maintained the action. It is true that it was material to show the value of the wood, trees and timber as they stood upon the land, if their value could be measured and ascertained without reference to the value of the land, but it has never been held that a judgment is res judicata as to all the litigated facts and all the evidence which one party or the other may choose to introduce upon the- trial, however important the evidence may have been. It follows that the learned trial justice correctly held that the plaintiff’s right to recover in this actioh was not controlled or affected in any way by the judgment in the'former action.

I am, thérefore, of opinion that the judgment and order appealed from should be affirmed, with costs.

Chester, J., concurred.

Judgment and order reversed on law and facts and.new trial granted, with costs to appellant to abide event.  