
    THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondents v. ANDREW J. CONSTANTINE, et al., Appellants.
    
      Undertaking to pay to the commissioners of charities and correction a certain sum weekly for the support of a family for one year.
    
    This action was tried before a judge of this court, without a jury, and judgment was entered upon his findings of fact and conclusions of law. In such a case there is no jurisdiction to entertain a motion for a new trial upon the minutes of the judge under section 999 of the Code. That section applies only to jury trials.
    I-Ield, that the motion for a new trial, which was made in the court below upon all the grounds stated in section 999, was, therefore, properly denied, and the order is now affirmed.
    It appeared upon the trial that in February, 1887, the same plaintiffs brought an action against the same defendants upon the same recognizance or undertaking, and for a breach thereof in the district court of the first judicial district of the city of New York. That Andrew J. Constantine answered in that action and set up several defences, and upon a trial of the issues raised by the findings in that action a general judgment was rendered in favor of defendants, and upon an appeal from said judgment to the general term of the court of Common Pleas the said judgment was, on or about October 29, 1887, in all respects affirmed. It is well settled that only one recovery upon the recognizance or undertaking may he had upon a refusal to fulfil its conditions at any time after it has been executed, and that the whole amount is forfeited upon a single breach. Held, that the judgment referred to, in the absence of proof that it was given for a specific reason which preserved the right to bring another action, constitutes a former adjudication, and as such, it is conclusive between the parties on every question caused by it, and is a complete bar to the present action, at least,-so far as the -appellant now before the court is concerned.
    Judgment reversed and a new trial ordered.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
    
      Decided May 2, 1892.
    
      Appeal from judgment and from order denying motion for new trial.
    
      John D. Quincy, attorney and of counsel, for appellants, argued :—
    The judgment for defendant in the district court is res adjudicaba as to the issues herein and a bar to this action. The return on appeal shows that the case was heard on the 26th day of May, 1887, upon the proofs given by both parties that the case was closed, and that thereupon the justice, on the 10th day of June, 1887, rendered judgment in favor of the defendant and against the plaintiff. This was a final determination upon the merits, a bar to another action and a judgment for which an appeal will lie. Blair v. Bartlett, 75 N. Y., 150; Blum v. Hartman, 3 Daly, 47. Whatever was requisite to be proved and established as facts by plaintiff in order to obtain judgment is, so long as the judgment remains unreversed, res adjudicaba between the parties and conclusive upon them, and the judgment is conclusive on every question that might have been litigated. Blair v. Bartlett, supra. An adjudication in another action between the same parties upon the same claim or demand is conclusive not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. The question is settled forever between them by that judgment. It cannot be opened and litigated again by either of them- in another action. Blair v. Bartlett, supra; Hallock v. Dominy, 69 N. Y., 238.
    
      Louis Hanneman, corporation attorney, and Herman Stiefel of counsel, for respondent, argued:—
    As to the question of a former judgment in the district court. The return on appeal shows that the proofs given by both parties before the justice of the district court was such complete and positive proof as to render a judgment in favor of the plaintiff instead of in favor of the defendant. The justice in rendering the judgment must have been mistaken in the rendition thereof, and therefore where it appears from the return and from the testimony taken in the former litigation that the judgment should have been in favor of the plaintiff, that it will not be considered res adjudicata in the case bar, for the proof and facts established by the plaintiff were such as to leave no doubt in the mind of any court that the judgment rendered by the justice in the district court was error and should have been in favor of the plaintiff. The justice in the district court writing no opinion, and therefore could not gather upon what ground he rendered the decision in favor of the defend? ant. Taking all the testimony and the proof as submitted there can be no doubt that the judgment was error, and therefore this present action is not res adjudicata. Chapman v. Rollins, 78 N. Y., 311.
   By the Court.—Freedman, J.

The issues in this case were tried by a judge of this court without a jury and he filed his decision containing his findings of fact and conclusions of law and the direction for judgment, and judgment was entered accordingly. In such a case there is no jurisdiction to entertain a motion for a new trial upon the minutes of the judge under section 999 of the Code. That section applies only to jury trials. The motion for a new trial which was made upon all the grounds stated in said section, was, therefore, properly denied, irrespective of the particular reason which may have influenced the learned judge.

Upon the appeal from the judgment various reasons have been assigned for reversal, but it is only necessary to notice one of them, because it is fatal. The printed case leaves it somewhat uncertain whether both defendants appeal, or only the defendant Andrew J. Constantine, but from the points submitted it clearly appears that the appeal is prosecuted by him alone. As to him the former judgment of the district court which was in his favor, and which he pleaded herein as a defence, is a bar to this action.

The present action was brought in December, 1887, by the above named plaintiff against the defendant Andrew J. Constantine as surety upon a recognizance or undertaking given by the defendant Thomas S. Constantine upon his conviction before a police justice of this city of being a disorderly person for neglecting to support his wife and children. The recognizance or undertaking was given under the provisions of the Code of Criminal Procedure, and the condition was that Thomas S. Constantine should be of good behavior for one year and should pay ten dollars weekly to the commissioners of public charities and correction for the support and maintenance of his family. The breach alleged is that Thomas S. Constantine had not. paid to said commissioners the ten dollars per week from the giving of the recognizance or undertaking until the expiration of the year therein mentioned.

Upon the trial it was shown that, in February, 1887, the same plaintiff brought an action against the same defendants upon the same recognizance or undertaking, and for a breach thereof, in the district court in the city of New York for the third judicial district, that Andrew J. Constantine answered and set up various defences, that, upon a trial of the issues raised by the pleadings in that action, a general judgment in favor of said defendant was r'endered on or about June 10,1887, and that upon an appeal by the plaintiff from said judgment to the general term of the Court of Common Pleas, the said judgment was, on or about October 29, 1887, in all respects affirmed.

As it seems to be well settled that there can be but one recovery upon the recognizance or undertaking sued upon, that a recovery may be had upon refusal to support at any time after the recognizance or undertaking has been given, and that the whole amount is forfeited upon a single breach, the judgment referred to, in the absence of proof that it was given for a specific reason which preserved the right to bring another action, constitutes a former adjudication, and, as such, it is conclusive between the parties on every question covered hy it, and a complete bar to the present action, at least so far as the appellant now before the court is concerned.

Moreover, it may well be doubted whether upon the last trial the plaintiff sufficiently established a breach of the condition within the rule laid down in People v. Pettit, 74 N. Y., 320.

The order denying defendants’ motion for a new trial should be affirmed, but the judgment should be reversed and a new trial ordered, with costs to the appellant, Andrew J. Constantine, to abide the event.

Sedgwick, Ch. J., and McAdam, J., concurred.  