
    Julia A. Chapman et al., Executors, etc., of George M. Chapman, Pl’ffs and App’lts, v. Isaac Frank, Def't and Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 3, 1889.)
    
    1. Judgment—When mat be given in evidence.
    A judgment in one action cannot be given in evidence on the trial of' another, unless the parties are the same, or theré is a privity of blood, representation, estate or law between one of the parties to it and the persons against whom it is admitted; and when such a judgment is admissible, it is conclusive not only on the parties, but those privy to it.
    3. Same—Privity—Assignor and assignee of lease.
    But there is no such privity between the assignor of a lease upon which suit is pending for rent, and the assignee of the rent subsequently accruing, as to make a judgment rendered in another court against the assignee evidence in the suit for the prior rent between the assignor and the same-defendant. While an assignee of a claim may be bound by the acts of the assignor prior to the assignment, the converse of the proposition does not. hold.
    Appeal from a judgment entered upon a verdict and from an order denying a new trial.
    The facts sufficiently appear in the opinion.
   Bookstaver, J.

Chapman, in his life-time, brought two-suits in a district court, each for one-quarter’s rent, under a. sub-lease to the defendants. These actions -were removed, to this court and were consolidated. The defendants then interposed an answer setting up an eviction by William. Oppenhvm, the superior landlord, for non-payment of rent, by Chapman, and also a counter-claim for moneys spent in the repair of the premises at Chapman’s request.

On the trial, the defendant’s proved the loss of the record in the summary proceedings constituting the eviction set. up in the answer, and made proof of such proceedings by secondary evidence. They also proved that after the commencement of this action, Chapman assigned the rent subsequently accruing on the same sub-lease to one Cootey, who commenced an action in the supreme court, second department, against these defendants for that rent. The issues in that action were the same as in this, except as to-the counter-claim, and the trial of those issues resulted in a judgment in favor of the defendants, which was afterwards, on appeal affirmed at general term. Cootey (sub. nom. Cooley) v. Frank, 1 N. Y. State Rep., 773.

The judgment roll in that action was offered and received, in evidence on the trial of this, under plaintiff’s objection and exception. Neither Chapman nor the plaintiffs in this, action were parties to that record.

A judgment in one action cannot be given in evidence on. the trial of another, unless the parties are the same, or there is a privity of blood, representation, estate or law between one of the parties to it and the persons against whom it is admitted. Neeson v. City of Troy, 29 Hun, 173; Booth v. Powers, 56 N. Y., 22.

When such a judgment is admissible, it is conclusive not only on the parties, but those privy to it (1 Greenleaf on Evi., 14th ed.; Krekeler v. Ritter, 62 N. Y., 372), because they have succeeded to some estate or interest which was bound in the hands of the former owner. Freeman on Judgments, § 162; Brennan v. Blach, 3 Daly, 478; Zoeller v. Riley, 100 N. Y., 102.

But no such privity existed between Cootey, the assignee, of the claim in the supreme court action, and Chapman, the assignor, and his representatives. While an assignee of a claim may be bound by the acts of his assignor prior to the assignment, the converse of this proposition does not hold.

If the parties to the record, as well as the issues in each case, are the same, of course they are bound by the former adjudication; so, too, where an action is prosecuted in the name of another, but for the benefit and under the management of the assignor, he should be bound by the result, for in that case he is a party to the judgment in fact if not in name.

Had the defendants in the Cootey action therein alleged that Chapman was the real party in interest, and that it was prosecuted for his benefit, a very strong case could have been made in support of that plea. Both actions, were to recover' rent alleged to be due from the same defendants under the same sub-lease; the issues were the same; the witnesses for the plaintiffs in each were the same, and both were prosecuted by the same attorneys. But there was no such defense set up in the pleadings, and in its absence we must take the record as it stands, and hold that Cooty was the assignee and not the representative of Chapman. Flagler v. Schoeffel, 40 Hun, 178.

The evidence só admitted, taken in connection with the charge of the court on that subject, allowed the jury to-consider what had been done by another jury in an action to which the plaintiffs were not parties, and we cannot say it did not have some weight with them.

The judgment must, therefore, be reversed and a new trial ordered, with costs to abide the event.

Daly, J., concurs.  