
    Joseph McDonald, Appellant, v. The Hygienic Ice and Refrigerating Company, Respondent.
    Third Department,
    December 28, 1911.
    Judgment—res adjudicata — evidence—when judgment not a bar.
    A party who sets up a prior judgment as a bar or seeks to introduce it as conclusive evidence must not only produce a record showing a j ud'icial determination of the questions litigated, but must also show that the judgment was rendered on the merits.
    If there be any uncertainty as to whether the precise question was raised and passed upon in the former action the judgment is not conclusive.
    Where a judgment might have been rendered on a ground not involving the merits it is presumed that it was so rendered, and one claiming it as a bar must show by extrinsic evidence that it was in fact rendered on the merits.
    Where it appears that defendant moved for a nonsuit at the close of plaintiff’s case and that decision was reserved and it further appears that the ■ motion was renewed at the close of the whole case and that decision was again reserved and the docket reads, “ Motion for nonsuit granted. Action dismissed on the merits,” such judgment, in the absence of extrinsic evidence, is not a bar to another action between the same parties on the same facts and for the same relief.
    Smith, P. J., and Kellogg, J., dissented.
    
      Appeal by the plaintiff, J oseph. McDonald, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the . county of Albany on the 1st day of June, 1911, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term.
    The action was brought to recover for personal injuries sustained by the plaintiff while in the employ of the defendant. Upon the trial the defendant introduced .in evidence the original docket of the justice of the City Court of Albany by which it appeared that on the 12th day of November, 1910' an action was commenced in that court in which Joseph McDonald was plaintiff and the defendant in this action was defendant to recover $1,000 damages for the same injuries; that the action was brought to trial December 1, 1910, and at the close of the testimony upon the part of the plaintiff the defendant moved for a nonsuit on the ground that facts sufficient had not been proved to constitute a cause of -action and that no negligence on the part of the defendant had been proved from the testimony of the plaintiff’s own witnesses; that by consent the decision of the motion was reserved until the close of the testimony; that the same motion was renewed on the same ground at the close of the whole case and that the decision of that motion was also reserved. The docket, which is the only evidence of what took place thereafter, then proceeds, “December 15, 1910, motion for nonsuit granted. Action dismissed on the merits. Judgment for defendant, costs $25.” The court held that the judgment of the City Court is a bar to the present action and granted the motion of the defendant for a nonsuit upon that ground.
    
      Henry J. Crawford, for the appellant.
    
      George Lawyer, for the respondent.
   Sewell, J.:

We are of the opinion that the trial court erred in holding that the judgment in question is a bar to a litigation of the question in this action. ■ It is well settled that it is not sufficient for a party who sets up a prior judgment as a bar or seeks to introduce it as conclusive evidence to produce a record showing a judicial determination of the questions litigated. He must further show that the judgment was rendered upon the merits. (Genet v. Delaware & Hudson Canal Co., 170 N. Y. 278; Rudd v. Cornell, 171 id. 114.)

In such a case it is necessary that the ground upon which the action proceeded to judgment should affirmatively appear either from the record itself or from extrinsic evidence. (Stowell v. Chamberlain, 60 N. Y. 272; Bell v. Merrifield, 109 id. 202.) If there be uncertainty as to whether or not the precise question was raised and passed upon in the former action the judgment is not conclusive. (Lewis v. Ocean Navigation & Pier Co., 125 N. Y. 348.)

The record of the prior suit, produced by the defendant, shows two judicial determinations, one the result of a motion, distinctly and expressly made, for a nonsuit, the other following it and purporting to be on the merits. It is difficult to understand how the court could, have dismissed the action on the merits after it had disposed of the case upon the motion for a nonsuit. It is not necessary, however, to rest our decision upon this proposition. It is a sufficient answer to the contention of the defendant that the judgment in question is a bar to say that the defendant failed to show which of the two different and distinct determinations in the record was actually made. There was, at least, an uncertainty as to whether the judgment was rendered on the merits or was a mere non-suit. Moreover, no extrinsic evidence was produced to rebut the presumption, from the face of the record, that the merits were not passed upon. In Clark v. Scovill (198 N. Y. 279) it was held that in determining whether a judgment is a bar, the judgment roll is the primary but not the exclusive guide, and when it appears therefrom that the judgment might have been rendered on the merits or upon a ground not involving the merits, the presumption is that it was not upon the merits, and the burden is upon the one claiming it is a bar to show by extrinsic evidence consistent with this judgment roll that it was in fact rendered on the merits. We think that the judgment invoked as a bar was, in legal effect, a mere nonsuit, and, therefore, it did not operate as an adjudication in favor of the defendant upon the questions litigated in that action. It follows that the judgment should he reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Smith, P. J., and Kellogg, J., dissenting.

Judgment reversed and new trial granted, with costs to appellant to abide event.  