
    Levi P. Rose, App’lt, v. The City of Yonkers et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed May 24, 1892.)
    
    1. Res ad judicata—Estoppel—Demurrer.
    Plaintiffs complaint alleged a conveyance by him to the municipal corporation of certain land upon the condition that it should only be used as a highway, and; that no erection save a public monument should ever be placed upon it, and alleged a breach thereof by defendant in permitting the building of a house thereon, and further stating that in a previous action between the same parties to enforce the forfeiture, all the facts now alleged were found to be true except notice to the city; and the judgment therein for plaintiff was reversed by the general term and court of appeals on the ground of said lack of notice; that by said action the city received notice, but continued to permit the encroachment. Held, that there was not enough in' the admissions of the complaint to make the judgment in the prior action a bar so as to sustain a demurrer.
    :3. Same.
    Said judgment determined that there was then no right of action in the plaintiff and no forfeiture of the title of the defendant, and to that extent was conclusive, but the right which he did not then have he might possibly thereafter acquire.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment sustaining demurrer to -complaint.
    
      James M. Hunt, for app’lt; Theodore Fitch and Joseph F. Daly, ior resp’ts.
    
      
       Reversing 39 St. Rep., 985.
    
   Finch, J.

The demurrers interposed by the defendants have-been sustained upon the ground that the complaint, on its face,, disclosed the existence of a prior judgment between the same parties and for the same cause of action, which operates' as a bar to-any recovery by the plaintiff in the present suit. Necessarily what we have a right to know about such prior judgment cannot transcend the facts disclosed by the present complaint, and we must not go beyond its statement, although other sources of information are within our reach. Confining our attention to that document, it is necessary to consider its allegations in connection with the admissions which form the support of the demurrers.

The plaintiff alleges a conveyance by him to the municipal corporation of certain described premises, excepting and reserving, and upon the express condition, “ that the strip of land forming part of the premises above described, and being twelve feet and six inches in width, and extending along said Academy street, shall forever hereafter bean d remain a part of said Academy street, and shall never be used for any other purpose whatsoever, and also that all the residue of the said land hereby conveyed shall forever hereafter be and remain public and open as a public highway, and that no house, building or other erection whatsoever except a public monument shall ever be built or erected or permitted upon the said land or any part thereof.” The complaint then alleges a breach of this condition by the city of Yonkers in that it has permitted, and still continues to permit, a house or building to stand upon said premises; and in order to establish such permission alleges notice to the city of the fact of the encroachment and full knowledge of its existence. The cause of action alleged is thus a breach of the condition of the deed, which- consists in suffering and permitting-an unlawful encroachment after having been fully informed of its-existence. The forfeiture claimed is rested upon the conscious- and willful sufferance of the city as amounting to a permission.. In pleading the fact of such permission the details are stated', which provoked the demurrers. It is averred that a previous--, action- had been brought by the same plaintiff against the same-defendants to enforce a forfeiture; that upon the trial all the facts now alleged were found to be true, except notice to or knowledge of the city; that judgment was rendered for the plaintiff, which judgment on appeal was reversed by the general term upon the-law and-not upon the facts; that the plaintiff appealed to this court: where the judgment of reversal was affirmed, and that such decision was based upon the fact that prior to the' commencement of' that action the city of Yonkers had no notice of any encroachment. It is further averred that on that trial the city defended, through the city attorney, and so-it acquired full knowledge of all the alleged facts, but, nevertheless, continued thereafter to suffer and permit the encroachment. The pleader did not say that upon the decision of this court in the first action judgment absolute was ordered for the defendant, nor if ordered that any such judgment was in fact entered, but possibly it may fairly be presumed that such usual and necessary proceedings were had. But even then. there is not enough in the admissions of the complaint to make the judgment in the prior action necessarily a bar, and I think it should not so be adjudged upon the demurrers. We do not know what the pleadings were in the prior suit, or what issues were in controversy.

It may be that the deed and its legal effect as containing a condition and not a covenant, and the fact of the encroachment, were all admitted and conceded, and that the only issue raised and tried was that of the sufferance or permission of the city. Or, what is more probable, because indicated by the opinion in this •court, that both appellate tribunals agreed with the trial court that the deed contained a condition and not a covenant, that for ■a breach there could be a forfeiture, that a violation of its terms was shown, but that plaintiff could not recover because, and only because, the city had no knowledge of the encroachment and could not be said to have permitted a wrong of which it was wholly ignorant On that state of facts, the judgment absolute for the defendant would establish that the plaintiff had no cause of action, but would not prevent him from thereafter acquiring one, and that is exactly what the present complaint alleges. It sets up a cause of action which accrued after the former judgment, founded upon a subsequent occurrence, and finding for its •support new and different evidence. The two causes of action are not and cannot be identical, for one never in fact existed and the other has since come into being. A recovery in the present suit will not contradict the judgment in the prior one, or be inconsistent with it Both may stand without collision.

Illustration is not argument, but sometimes helps us to a view ■of the truth. Let us suppose a suit on a contract in which the plaintiff recovers, but on appeal to the general term the judgment is reversed, because when the suit was brought the debt was not due or could not be enforced without a demand; that the plaintiff doubting the law and faced with a difficulty which he cannot cure on a new trial appeals to this court, where the reversal is affirmed and judgment absolute is ordered for the defendant. Is it true that such judgment prevents utterly a future recovery on the contract? May not the plaintiff sue when the ■debt does mature, or make the needed demand and then maintain his action ? I think the judgment as a bar depends always to some extent upon the nature of the controversy and the actual decision made. On the admission of the complaint we ought not to assume that something was adjudged against the plaintiff beyond what he admits, and which may prove to be exactly the reverse of what the judgment did determine.

I do not undertake to say what the conclusion should be if the prior judgment record was before us, and competent proof of what was adjudged. I only say that if no more was- adjudged-than what is admitted by this complaint the judgment absolute is not necessarily a bar. It did determine that there was then no right of action in the plaintiff and no forfeiture of the title of the defendant. To that extent it is conclusive. It settles against the plaintiff the right which he then asserted. But the right which he did not then have he might possibly thereafter acquire, unless some vital point adjudged prevented that possibility. Nothing of that sort is admitted by the complaint, but the exact contrary is asserted. The cases fully justify this doctrine. Bell v. Merrifield, 109 N. Y., 212; 14 St. Rep., 796; Lewis v. O. N. & P. Co., 125 N. Y., 341; 34 St. Rep., 973; People ex rel. Bridgman v. Hall, 104 N. Y., 170; 5 St. Rep., 578; Russell v. Place, 94 U. S., 606.

Some peculiar force is occasionally attributed to a judgment absolute entered upon the required stipulation because entered by consent, and the case of Roberts v. Baumgarten, 126 N. Y., 336 ; 37 St. Rep., 482, is cited as authority. Undoubtedly the appellant in such a case concedes by his appeal that he cannot recover upon a new trial if the doctrine of the general term shall remain unreversed, and the failure to change it on appeal to this court involves judgment absolute against him without the useless formality of a new trial. But where that judgment absolute to which the adversary is entitled is a general judgment for the defendant dismissing the complaint, it requires an examination of the record to determine what in truth was involved in the decision. The identity of the two causes of action cannot otherwise be ascertained, and that identity must be shown by the party asserting the bar of a prior adjudication. If, although the two causes of action are different and not identical, there is yet some vital question common to both determined in the earlier suit, that fact must in some way be made to appear. Here the two causes of action are not identical, for the present one arose out of new facts later occurring, and the complaint not only does not admit an adverse decision upon some material issue common to both cases, but asserts an adjudication in plaintiff’s favor upon every such issue except that of notice to the city.

Where the prior judgment claimed to be a bar is in favor of a plaintiff and awards a recovery, the character of the judgment, itself in connection with the pleadings affords a sufficient ground' from which to infer the necessary scope and range of the adjudication. The fact of the recovery cannot stand except on the condition that every defense to it pleaded or which might have been inteiposed is cut off. The existence of any such defense is inconsistent with the recovery. But where the judgment is one of no cause of action it can have no force as a bar until we can ascertain what was involved in it and what in truth was decided. It may have proceeded upon purely technical grounds, or have been simply the equivalent of a non-suit, or be found to have decided nothing involved in the later controversy.

In an equity case such a judgment might be given because there was a remedy at law upon the very contract involved or without in any manner cutting off or destroying the legal right Generally the test is to inquire whether the new judgment sought is inconsistent with the prior one rendered, and where that is one of no cause of action there may be no such real inconsistency and the party claiming that there is must show it No needless or purely constructive bar should be encouraged. The real truth and actual fact should always be sought In the present case no such necessary collision was admitted by the complaint. If it existed it must be shown, and we leave to the defendant full opportunity to do so upon the trial.

The judgment should be reversed and the demurrers overruled, with costs, but with leave to the defendants to answer within twenty days from notice of entry of judgment upon payment of ■costs of the demurrers.

All concur.  