
    Benjamin Wright, App’lt, v. David Miller et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 29, 1895.)
    
    Former adjudication—Counterclaim.
    A judgment roll in a former action between the same parties, which does not show that a counterclaim was not litigated therein, but, on the contrary, does show that a proposed finding, covering such counter claim, was submitted, which the referee refused to find, is a bar to a subsequent action on said claim, in the absence of proof de hors the record that the claim was not disposed of on the merits, though a witness in the latter action testifies that he understood that the referee did not act upon it because he did not consider it within his jurisdiction.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed a judgment in favor of defendants dismissing the complaint upon the merits entered upon a decision of the court on trial at special term.
    
      Isaac II. Maynard, for app’lt; F. P. Bellamy, for resp’t, David Miller ; Samuel Keeler, for other resp’ts.
    
      
       Affirming 51 St. Rep. 373.
    
   Bartlett, J.

This is a suit- in equity to recover moneys alleged to have been loaned and advanced by plaintiff to one Charles E. Miller, since deceased, also moneys advanced for his funeral expenses, and to have certain instruments referred to in the complaint adjudged to be assignments by the heirs and next of kin of Miller to plaintiff of all their several rights and interests in the proceeds of sale in a certain partition suit to the extent of plaintiff’s claim.

Hannah E. Miller, the grandmother of the plaintiff, Benjamin Wright, was the beneficiary under a trust created in her favor in 1806; in 1861 the plaintiff became trustee thereunder, and so continued until the death of his grandmother in 1871.

The persons entitled to the trust property after the death of Hannah E. Miller were her three children, viz. : Elizabeth Ann Wright, the mother of the plaintiff, Ezra Miller and Charles E. Miller.

The plaintiff claims that he loaned and advanced to Charles E. Miller, between October 17th, 1872, and September 9th, 1884, the date of Charles E- Miller’s death, the sum of fourteen hundred and five dollars in small amounts of from twenty to thirty dollars, and took his notes therefor. He also alleges that he advanced to one David Miller, after the death of Charles, fifty dollars to pay funeral and other post mortem expenses of the latter.

In 1876 Charles conveyed his interest in the trust property to David Miller, his son, in trust, and the latter began an action for the partition of the property and for an accounting by the plaintiff in this aótion as trustee of the estate of Hannah E. Miller. This action was pending at the time of Charles E. Miller’s death in 1884.

The partition suit was revived and continued against the heirs of Charles, and against the plaintiff in this action as trustee of the estate of Hannah. E. Miller and individually, and resulted in judgment and sale of the property, and the proceeds have been brought into court, and one-third thereof belongs to the defendants in this action as the heirs at law of Charles E. Miller, deceased.

The defendants in this action deny most of the allegations of the complaint and aver that the amounts so paid to Charles by plaintiff are in no way secured as an express charge upon the real estate of Charles, or the proceeds of sale, and ask to have the moneys distributed.

They also plead, among other things, that in the partition action of Miller v. Wright, the plaintiff as defendant therein, and as trustee of Hannah E. Miller’s estate, set up the claim now sued upon by way of counterclaim in his answer and sought to charge the alleged advances on the share of Charles E. Miller, and that the counterclaim was disallowed on trial before a referee.

On the trial of this case the judgment roll in Miller v. Wright was read in evidence, and the plaintiff endeavored to show by the testimony of one of the attorneys in the action that there was no adjudication upon the merits against him on his counterclaim, but that the referee held he had no jurisdiction. This evidence was introduced for the very obvious reason that the judgment roll upon its face contains nothing to indicate that'the claim of Benjamin Wright was not disposed of on the merits.

On the contrary, it appears that Benjamin Wright submitted to the court a proposed finding of fact and conclusion of law covering his claim, and the referee refused to find as requested.

On its face the judgment roll is clearly a bar to this action, and we must so hold unless the evidence of the attorney overcomes the force of this documentary proof.

This witness, on his direct examination, merely stated as to the ground the referee took in reference to Benjamin Wright’s claim, that he-understood it to be that the referee did not consider it within his jurisdiction to pass upon it, but added, “I am not stating what the referee said, but only my inference from it.”

On his cross-examination the witness was. asked this question : “Q. Mr. Taylor, before, the referee, proof of Benjamin Wright’s claim was presented? A. Yes, sir; and I understood the referee to hold that it could not be made a lien against the estate."

This last answer might very well be claimed as tending to show •an adjudication on the merits, but without so treating it we are of opinion that there is nothing in this evidende that would justify a finding that the referee held he had no jurisdiction to try and determine the issues raised by the counterclaim.

The plaintiff was sworn as a witness in his own behalf, and, with full knowledge that the judgment in Miller v. Wright, was pleaded as a bar to his claim, made no explanation as to the manner in which his counterclaim was disposed of in. that case.

If the plaintiff suffers injustice by the disposition we are compelled to make of this case, it is due to the fact that on the trial of this action there was an utter failure to establish the contention now made in his behalf that he has never had his day in court.

While it is true that the counterclaim set up in Miller v. Wright was for advances made by Benjamin Wiight as trustee, and the claim now sought to be established is that of Benjamin Wright individually, yet it is undisputed that both of these causes of action embrace the same transaction, to wit, the alleged advance of a certain sum of money.

We do not pass upon the legal status of Benjamin Wright as an individual defendant in the suit of Miller v. Wright, but rest our decision solely upon the ground that the proceedings and judgment therein are a bar to this action.

In Miller v. Wright the plaintiff herein elected to assume the position that the advances in question were made by him as trustee, and, as this record is made up, it appears he was defeated on the merits.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.  