
    Jacob Reitman, Respondent, v. Sam Shapiro, Appellant.
    (Supreme Court, Appellate Term,
    February, 1909.)
    Former adjudication — Causes of action barred or merged in general — Identity of cause of action — Necessity for establishing.
    Where, in an action against a partnership upon an account stated, both partners were duly served with process and judgment on the merits was rendered in their favor, and, in a subsequent
    
      action against one of them upon the same account stated, he pleads the former adjudication and offers in evidence the judgment in such action, the exclusion of evidence tending to show that the cause of action in the first case was identical with that for which the subsequent suit was brought is error.
    Appeal by the defendant from a judgment in favor of the ’ plaintiff, rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.
    Samuel Saltzman, for appellant.
    Benjamin Koenigsberg, for respondent.
   Seabury, J.

The plaintiff sues upon an alleged account stated. The answer pleads a denial and a former judgment as a bar to the present action. The plaintiff offered evidence of an account stated between the parties. The defendant offered as evidence the judgment-roll in an action wherein this plaintiff was the plaintiff and this defendant and one Rubin were sued as copartners. That action was also brought to recover up'on an alleged account stated. Both of these alleged accounts arose from the same alleged debt. The defendant offered evidence to show that the cause of action sued upon in the action against the copartnership was identical with that upon which the plaintiff now seeks to recover. This evidence was excluded over the objection and exception of the defendant. We think the exclusion of this evidence was error. If the causes of action were identical, to the extent that the same evidence would support both, the judgment in favor of the defendants in the action against the partners jointly was res adjudicata, in this action. In the action brought against Shapiro and Rubin as copartners, both - of the defendants were personally served and appeared in the action. If the judgment had been entered against the defendants in that action, it would have been conclusive evidence of the liability of each defendant who was served or appeared. Code Civ. Pro., § 1933. In that action judgment was rendered on the merits in favor of both defendants; and the judgment so rendered is, as a plea, a bar or as evidence conclusive between the same parties upon the same matter. This defendant should not be twice vexed for one and the same cause.

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

Gildersleeve and Giegerich, JJ., concur.

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