
    MINKOFF v. LIPSCHUETZ et al.
    (Supreme Court, Appellate Term.
    May 5, 1904.)
    1. Judgments—Conclusiveness—Similarity oe Issues.
    Where, in an action for the price of goods, the only question litigated was whether the goods were of the kind and quality ordered, which issue was resolved in favor of the sellers, the acceptance of a return of the goods being in no way involved, a judgment therein was not conclusive of a subsequent action by the buyers for the wrongful detention of the goods.
    Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.
    Action by Hyman Minkoff against Harris Lipschuetz and another. From the Municipal Court judgment in favor of plaintiff, defendants appeal. Reversed.
    Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ.
    Abraham Harawitz, for appellants.
    Louis J. Jacoves, for respondent.
   PER CURIAM.

The action was brought to recover damages for wrongful of two pieces of goods. answer the demand and refusal, but denies the previous delivery of the goods to the defendants, and, as an affirmative defense, pleads a judgment previously recovered in the Municipal Court in an action wherein these defendants were plaintiffs and the present plaintiff the defendant, to recover the purchase price of the goods in suit upon a sale and delivery of them to the then defendant.

The only question litigated in the former action was whether the goods were of the kind and quality ordered, and that issue was resolved in favor of the vendors. Although evidence was introduced tending to show that the goods .were returned to the vendors, the acceptance of the goods by the plaintiffs in the former action was in no way involved in the issues presented in that case. The question in this case is one of possession, and the judgment in the former action is not a bar to a recovery here. Upon the evidence, however, we feel that the plaintiff has failed to sustain the burden of proof upon the question of delivery. The testimony of the plaintiff’s witnesses-was contradictory, and in conflict with their testimony given on the former trial, and upon the whole case we think that the interests of justice require a new trial.

Judgment reversed and new trial ordered, with costs to appellants to abide the event.  