
    Walter L. O’Shea and G. Harry O’Shea, Respondents, v. Isaac Moritz, Appellant.
    Second Department,
    May 1, 1908.
    Judgment—res adjudieata — determination without formal judgment — mechanic’s lien — order that lienor be paid — accord and satisfaction.
    Where a defendant sued for the foreclosure of a mechanic’s lien counterclaims damages for defects in the work and, after a trial of the issues resulting in a decision in the plaintiff's favor, moves with the consent of the plaintiff for an order that the recovery be satisfied out of moneys paid into court to discharge the lien, a subsequent action by the defendant to recover for the alleged failure of the plaintiff to perform is barred although no judgment or decree was entered upon the decision in the former action.
    Moreover, the final order entered upon consent of parties determining that the plaintiff was entitled to be paid in full out of the money deposited to discharge the lien is equivalent to a judgment and is res adjudieata as to the issues tried.
    Moreover, as the defendant acquiesced in the decision of the court and moved that the plaintiff be paid in full, it was an accord and satisfaction of his claim for damages by defective work.
    Appeal by the defendant, Isaac Moritz, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 9tli day of October, 1907.
    
      Robert A. McDuffie, for the appellant.
    
      William W. Wingate, for the respondents.
   Jenks, J.:

The defendant appeals from a judgment of the Municipal Court in an action to recover damages for defects in his work under a contract between the "parties. The contract was subordinate to a contract between the plaintiffs and a third party. This defendant filed a mechanic’s lien which covered this work, and these plaintiffs sought to discharge the lien by a payment into court. Thereafter this defendant brought action in the Supreme Court on May 20, 1904, against these plaintiffs and the owner, to have his lien adjudged and to foreclose. Issue vías joined and trial was had. The Special Term decided that the plaintiff must have recovery in full, without costs. Thereafter, upon consent of the attorney for the plaintiffs, and on motion of the attorney for the defendant, an order was entered in that action that the city chamberlain pay tlie recovery in full out of the moneys deposited to discharge the lien. The order was complied with and the litigation was thus closed. It appears from the record before us that the present claim of the plaintiffs was heard, tried and disposed of on the merits in the Supreme Court, after a ruling that the defendant could establish it so as to lessen the amount of the plaintiffs’ claim for full performance.

The defendant in this action contended that the principle of res adjudicata applied. But the learned counsel for the respondents insisted that inasmuch as no judgment or decree was entered upon the decision of the Supreme Court this principle was unavailable.

It is well settled that it is the judgment which constitutes the bar, not the preliminary determination of the court. (Rudd v. Cornell, 171 N. Y. 129, and authorities cited.) The reason is that there should be proof that there was finality to the former action which is pleaded as adjudication. But the omission to enter a formal judgment in the action in the Supreme Court was not due to the fact that any issue was undetermined or that aught remained to be done. Final judgment would have necessarily followed the decision rendered. But at the instance of the defendant in that action the parties acquiesced in the decision and dealt with each other as if final judgment had been formally entered. ■ There are authorities to the effect that a verdict which has been paid is conclusive. (Willcocks v. Howell, 8 Ont. 576; Pollitz v. Schell, 30 Fed. Rep. 421, citing Catlin v. Taylor, 18 Vt. 104; Armstrong v. Colby, 47 id. 359.) But it is not necessary to rest upon these decisions, for the final order entered by the court in that action upon the consent of both parties had all of the effect of a judgment entered in the action, for it determined that the plaintiff was entitled to the full amount of his claim and the defendant was not entitled to any deduction therefrom by the reason of defective work. And the fact shown by it was that a litigation which involved this claim and wherein this claim was tried was determined on the merits wholly . adverse to these plaintiffs. (See Otis v. Crouch, 89 Hun, 548, 551.) Moreover it may be inferred that but for the application of the defendants in that action to their opponent for consent to the entry of this order in the litigation which had the finality and full effect of a judgment, and the entry of that order, the plaintiff would, have entered the judgment as of right. I think then that we should be deaf to the contention that the order had not the effect of a final judgment so far as the doctrine of res adjudícala is concerned, and permit these plaintiffs to try again a question which was settled against them and which they affirmatively accepted as a finality, renouncing their right of appeal.

Further, the litigation before the Supreme Court in effect presented a claim by the plaintiff in that action for the contract price for work done and a claim by the defendants in that action that they were damaged by.defective work. I think that the acquiescence by the defendants in the decision by the Supreme Court, as indicated by their affirmative entry of the order which practically ended it wholly in favor of the plaintiff in that action, coupled with the action of that plaintiff, constituted an accord and satisfaction. (Foster v. Trull, 12 Johns. 456, cited with approval in Davis v. Spencer, 24 N. Y. 391; Vedder v. Vedder, 1 Den. 257; note to Boosey v. Wood, 3 H. & C. [Exch.] 484; Willcocks v. Howell, supra.)

I advise that the judgment be reversed, with costs, and that judgment be ordered for the defendant, with costs.

"Woodward, Hooker, Gaynor and Miller, JJ., concurred.

Judgment of the Municipal Court reversed, with costs, and judgment ordered for the defendant, with costs.  