
    The People ex rel. Thomas Reilly, Respondents, v. Frederick Johnson, etc., Appellants.
    A judgment is conclusive upon the parties thereto, only in respect to the grounds covered by it, and the facts necessary to uphold it; and, although a decree, in express terms, professes to affirm a particular fact, yet, if such fact were immaterial to the issue, and the controversy did not turn upon it, the decree will not conclude the parties in reference to such fact.
    Hence, the record of the court, in such case, cannot be admitted as evidence in a subsequent suit between the parties to establish the fact thus incidentally affirmed, but not judicially established and'made conclusivo upon the parties.
    Oh the 28th day of February, 1861, the appellants presented to O. W. Van Voorhis, the justice of the seventh district court of the city of Hew York, the affidavit of Frederick Johnson, one of the appellants, and thereupon demanded process to remove the relator, Thomas Reilly, from the premises known as Hermitage Hall, in the city of Hew York, upon the ground, that said Reilly was a tenant of. the said appellants, and was holding over after the expiration of his term, without the leave of his landlords.
    On the 1st day of March, 1861, the justice issued a summons against Reilly, requiring him to remove from said premises, or to show cause to the-contrary on the same day.
    On the return of such summons, Reilly interposed a counter affidavit, and demanded a jury trial.
    • The cause came on for trial, on the 8th day of March, 1861, and was tried on that day, and the result was a verdict in fávor of the landlords, upon which a warrant was issued, and Reilly was dispossessed, and Johnson and McMann were put in possession of Hermitage Hall.
    From the judgment entered upon this verdict, a certiorari was issued out of the Supreme Court, and the judgment of the district court was there reversed, and restitution ordered, and, from such judgment of the Supreme Court, an appeal is taken to this court.
    
      
      L. B. Pert, for the appellants.
    
      E. W. Dodge, for the respondents.
   Bacon, J.

There is but a single question in this case, and that arises upon a ruling made by the magistrate before whom the proceeding was taken to oust the relator from the premises, of which it was alleged he was a tenant. In the affidavit, which was the foundation of the proceedings before Tan Toorhis, the appellant Johnson swore that Reilly, the relator, was the tenant of Johnson and Cornell, who claimed to have been the owners in fee of the premises in March, 1859, for six months from that date, and, on the 22d of September, 1859, they had let the premises to him for a further term of three months, which expired in December, 1859, and that he was holding over without the permission of Johnson and McMann (to whom Cornell had conveyed his interest), after the expiration of his term.

, On the trial, the only evidence given by the appellants to maintain their allegations was a judgment record in an action in the Superior Court, in which Reilly, the relator, was plaintiff, and Johnson, Cornell and McMann were defendants, and the record is set forth in full in the case. To the introduction of this record to prove the issue, the counsel for Reilly duly objected, and the objection was overruled, to which an exception was taken, and the record was read in evidence, and the case was rested on the part of the landlords. After evidence had been introduced on the part of Reilly, the case was given to the jury, under a charge, in which the magistrate told them, among other things, that if the jury believed, that one of the issues tried and determined in the suit in the Superior Court was the question of landlord and tenant between the parties, then the parties to such suit were bound by the judgment, which was final and conclusive; and that it was a question of fact for the jury, taking all the evidence into consideration, the judgment record and the defendants’ testimony.

In both the ruling and the charge, I think the court below committed a manifest error. By looking at the pleadings in the suit in the Superior Court, it is obvious, that the only real question in issue between the parties was, whether the deed held by Johnson and Cornell of the premises in question, known as Hermitage Hall, was not in fact only a mortgage as security for the repayment of the sum of $5,609 advanced by them to Shea, upon the conveyance to them. This was the whole object and gravamen of the complaint, in which that state of facts was alleged, and the claim of the plaintiff was, that it should be adjudged a mortgage, and the defendants in the suit be required to convey their interest in the premises to him on being paid the sum for which they were held as security.

In the answer, all these allegations were specifically controverted, and the agreements and negotiations of the parties respecting the premises were professed to be set forth, and, among other things, it was alleged, that there was a tenancy of the premises for a limited period by Reilly. But it is evident, that this was a mere incidental or collateral issue, the main and vital controversy between the parties being the allegation of an equitable mortgage on the one side, and the right to redress on the other, and deciding that question for or against the plaintiff, was deciding the whole issue. As, then, the issue in that suit did not necessarily involve the question, whether Reilly was or was not the tenant of Cornell and Johnson, and was not essential to its determination, the record in that case was not, and could not, be evidence of the fact, and yet this was all the evidence there was in the case before the magistrate. It is a very familiar principle, that a judgment concludes the parties only as to the grounds covered by it, and the facts necessary to uphold it. (Cow. and Hill’s Notes, vol. 3, p. 826.) And, although a decree in express terms professes to affirm a particular fact, yet, if such fact was immaterial, and the controversy did not turn upon it, the decree will not conclude the parties in reference to that fact. (Coit v. Tracy, 8 Conn. 268; Manny v. Harris, 2 Johns. 224.) The mere fact of the alleged tenancy is undoubtedly found by the judge on the trial in the Superior Court, but the fact was immaterial, and the judgment did not in any respect rest upon that finding, as is most obvious from an inspection of the pleadings, the findings of the court, and the final judgment rendered thereon. The court below, consequently, erred in overruling the objection of the counsel of the relator, and allowing the record to be put- in evidence for the purpose of establishing the relation of landlord and tenant between the parties.

There is nothing in the case from which to find any tenancy but the record in the Superior Court, and the jury must have determined it from the record, which having been ' improperly received in evidence, there remained nothing in the case to uphold the verdict, which was properly reversed on the certiorari to the Supreme Court.

The judgment being thus reversed, it was almost a matter of course to award restitution of the premises to the party improperly dispossessed. If this is not made mandatory by the statute, but permissive, and depends on the exercise of discretion in the court, that discretion was exercised, if not in the first instance, by the court, ultimately at General Term, refusing, on a special motion at the instance of the appellants, to set aside the order which had been settled and entered as the order of the General Term, and confirming the judgment by, which restitution was directed to be made to the relator. Chamberlain v. Choles (35 N. Y. 477) is a precise authority to show, that, where a party has been dispossessed by a writ improperly granted, he is entitled to restitution.

The judgment should, in my opinion, be in all things affirmed.

Judgment affirmed.  