
    Frank B. Stearns, Resp’t, v. St. Louis and San Francisco Railway Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Former judgment—Obtained in another state—When not a bar TO A SUBSEQUENT ACTION IN THIS STATE.
    To defeat a subsequent action by the determination of a preceding litigation, between the same parties, the subject matter of the second suit must have been directly or indirectly included in and passed upon by the? former judgment. Held, that the judgment secured in the state of Missouri against the plaintiff was not a bar to the case made by the complaint in this action. Following decision in S. C. on former appeal (3 N. Y.. State Rep., 391; 4 id., 715).
    
      8. Statute oe ebauds—When agbeement void because within.
    Where in an action on a verbal contract it was adjudged on a former appeal to this court that the agreement related wholly to the sale of lands in the state of Missouri, and was not within the statute of frauds of this state, because the statute of frauds of Missouri alone applied if any such statute existed in that state, but if the statute of frauds of Mew York was to govern it would be within that statute: Held, that it being shown that the statute of frauds of Missouri was similar to that of Mew York, the agreement was within that statute and was void,
    Appeal from, judgment entered on verdict, and from order denying defendant’s motion for new trial.
    
      John E. Burrell, for app’lt; James Dunne, for resp’t.
   Van Brunt, P. J.

This case has been before the general term upon two previous occasions 2 N. Y. State Rep., 391; 4 id., 715. First, upon an appeal from the judgment dismissing plaintiff’s complaint; and secondly, upon a motion for a reargument of that appeal. And we concede that the adjudications made by this court upon those appeals should control the decisions of the questions involved, so far as they may be applicable, although we might have arrived at a different conclusion had these questions been presented for the first time to this court.

It was distinctly held upon the appeal from the judgment rendered upon the first trial of this case that the judgment recovered in the state of Missouri against the plaintiff could not be set up as a bar to the case made by the complaint in this action. Although it seems to be apparent that the adjudication in Missouri determined as between these parties that there had been a breach of his contract upon the part of the plaintiff, and that there had been no breach of its contract upon the part of the defendant, and that, therefore, the defendant in this action had never refused to convey to the plaintiff or his assigns; and although under these circumstances it is not apparent from whence the right of the plaintiff arises to claim in this action that there had been upon the part of the defendant such a refusal to convey, we must be governed by the decision of this general term upon the previous appeal that such judgment in Missouri was not a bar to the case made by the complaint in this action. But I do not find that it has been adjudicated by this court upon these appeals, as is stated by Mr. Justice"Macomber, that if the plaintiff succeeded in proving, by paroi evidence, the allegations in the complaint, there was no legal hindrance to his recovery.

Upon the motion for a reargument the judgment of the general term upon the first appeal in reference to the effect of the litigation in Missouri was adhered to; and it was further decided that the original contract was a simple contract, capable of being modified by such an agreement as the plaintiff alleged in his complaint to have been made, and the adjudication to that effect was based upon the fact that the allegation in the complaint was that it had been agreed between the defendant corporation and the plaintiff, and that the use of this word “agreed ” so employed in the pleadings imported the making of a legal agreement, and that under this allegation the court was not at liberty to infer that it was nothing more than a verbal agreement for the purpose of defeating on that inference the plaintiff’s right of action.

But the court further held that this agreement related wholly to the sale of lands in the state of Missouri and was not within the Statute of Frauds of this state; that it was there to be performed by a corporation created and existing under the laws of that state and related to real property situated in that state, and that without evidence of the fact that a similar statute relating to contracts for the sale of real property existed in that state to the statute existing upon this subject in the state of New York the fact could not be presumed to be so. And the court further say that whether the plaintiff will be able to maintain this action must depend not so much upon the state of the pleadings as upon the proof which may be adduced in support of his allegations upon the trial.

This adjudication, therefore, left it open to the defendant to establish the fact that the second agreement as it is called, fell within the Statute of Frauds of the state of Missouri and was void. It has been adjudicated by the last opinion to which attention has been called that this agreement related wholly to the sale of lands in Missouri and that it was not within the Statute of Frauds of this state, because the Statute of Frauds of Missouri alone applied if any such statute existed in that state.

It is further clearly intimated that if the Statute of Frauds in Missouri was similar to that in New York, then the agreement came within its terms and was void.

Upon the trial it was proved that this second agreement which it was claimed formed the basis of the plaintiff’s cause of action was not in writing. It has been held by the general term that this agreement related wholly to the sale of lands in Missouri and the statutes of the state of Missouri were put in evidence which provided that no action should be brought to charge any person upon any contract for the sale of lands, tenements, hereditaments or any interest in or concerning them, or any lease of them for a -longer term than one year, unless such agreement is in writing.

_ The claim upon this appeal that this new contract was .'simply one of brokerage is no more open to us for "discussion than is the question as to whether the judgment obtained in Missouri is a bar to the maintenance of this .action. <#■

Upon this state of facts the court have held that this was a contract relating to the sale of lands in the state of Missouri and that if the Statute of Frauds of the state of New York was to govern, it would be within that statute, and that if the statutes of Missouri were similar to those existing in New York, it came within the statutes of Missouri.

The proof in the case showed that in this respect the Statute of Frauds of the state of Missouri was similar to that of New York, and consequently the agreement was within that statute and could not be enforced.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Brady, J., concurs; Macomber, J. concurs in result.  