
    Taylor v. Taylor et al.
    
    
      (Supreme Court, General Term, First Department.
    
    December 31, 1891.)
    Res Adjudicata—Identity of Question.
    Plaintiff alleged that defendant, during a specified period, embezzled a large sum of money from him, and invested about 815,000 thereof in a certain house and lot, and, as part of his relief, plaintiff sought to recover title thereto. The court found that defendant did not, during the time mentioned, embezzle large sums of money, and invest the same, and dismissed the complaint. Afterwards plaintiff brought a new action against defendant, alleging the embezzlement of a large sum of money during the same period, and the investment of about $16,000 thereof in certain other real estate, to which plaintiff sought to recover title. Held, that the gist of both actions was the embezzlement, the relief sought being merely incidental, and hence that the former judgment was a bar to the subsequent action. 14 N. Y. Supp. 430, affirmed.
    Appeal from special term, Hew York county.
    Action by Washington H. Taylor against Catherine Taylor and Margaret Barnes. Judgment overruling demurrers to the several answers of defendants. Plaintiff appeals.
    Affirmed.
    For former reports, see 13 H Y. Sunp. 55; 14 H. Y. Supp? 420.
    The complaint in the prior action between the parties set forth, in substance, that between the 23d day of June, 1879, and the 3d day of February, 1883, the defendant unlawfully and wrongfully took and embezzled large sums of money, the property of the plaintiff, and without his consent invested the sum of about $15,000 in the purchase of a house and lot in West Thirty-Third street, in the city of Hew York. By appropriate and sufficient allegations, the plaintiff sought, as a part of his remedy, to recover the title to the real estate alleged to have been purchased by the moneys charged to have been embezzled. The court upon the trial of the issues joined, among other things, decided, as matters of fact, that the defendant did not, during the period alleged, take and embezzle large sums of money, the property of the plaintiff, or invest the same, and dismissed the complaint upon the merits. In the case at bar the plaintiff for his cause of action alleges that the defendant, during precisely the same period mentioned in the former complaint, unlawfully and wrongfully took and embezzled large sums of money, the property of the plaintiff, to-wit, the sum of about $40,000, and used the sum of about $16,000 thereof in the purchase of a house and lot on the southerly side of Bond street, in the city of Hew York, and for relief asks that the title thereof be decreed to be vested in him. The defendants set up the former judgment in bar of this action, to which the plaintiff demurs. The trial court decided, as matter of law, that the findings and judgment in the former case operated as a conclusive barrier to the alleged cause of action. From the judgment entered upon such decision this appeal is taken.
    Argued before Daniels and Lambert, JJ.
    
      Charles Wehle, (Noah Davis, of counsel,) for appellant. Fullerton c6 Rushmore, (Benj. Seharps and William Fullerton, of counsel,) for respondents.
   Lambert, J.

Counsel for the appellant concedes the rule that every material question of law or fact involved in the issue in the former action must be regarded as determined by the final judgment in that action, and cannot be made the subject of judicial investigation in this case, but claims that the plaintiff in either case was but pursuing a remedy in the nature pf an action in rem; that the judgment sought in the respective actions was the determination of title to distinct and different parcels of land, and that therefore, as a necessary conclusion, the finding by the court that the plaintiff’s wife did not, between the 23d day of June, 1879, and the 3d day of February, 1883, embezzle large sums of money of the plaintiff, was not the determination of a material or indispensable fact to the plaintiff’s right of action. To this proposition we cannot lend our assent.

The gravamen of the complaint was the wrongful'taking of the money, and whether it was invested was immaterial so far as the right of action for the money was.concerned, and simply because the plaintiff sought to pursue the avails of the money wrongfully taken, as a means of restoration, instead of relying upon a judgment for damages, could not deprive the case of the fundamental elements upon which his right of action was based. Upon the theory that the moneys invested were his, an equity would be established in the land in his favor, as between him and the wrong-doer; and for the purpose of affording relief, as against the wrong-doer, the court by legal requirement would adjudge the title to be in him. The investment of the moneys by the plaintiff’s wife did not create a cause of action independent of the act of wrongful taking, and the allegation respecting the investment was immaterial, except for the purpose of reaching the property as a means of redressing the injury resulting from the wrongful taking of the money. It follows as a necessary result that the allegation of embezzlement was not only an indispensable fact to be alleged and proven to sustain the action for the recovery of the land, but was the foundation for the support of the judgment demanded. It was therefore one of the issues litigated by the parties upon the former trial, and is conclusive as a bar to this action, within the rule established by the case of Lorillard v. Clyde, 122 N. Y. 41, 25 N. E. Rep. 292, and the cases cited. It is there held that a defeated party is concluded from litigating the issues upon which a judgment upon the merits is rendered, and every other matter directly at issue by the pleadings which the defeated party might have litigated.

The conclusion reached necessarily disposes of the suggestion made by the learned counsel for the appellant that the only moneys in controversy in the former action were those invested in the purchase of the Thirty-Third Street property, and that therefore the judgment entered upon the finding that the defendant did not embezzle large sums of money does not preclude the plaintiff from showing that other moneys were embezzled by the defendant, and invested in lands on Bond street. The principal issue in either case being whether or not the defendant did embezzle large sums of sum, as the basis of his action, the finding by the court that the defendant did not embezzle large sums of money, and the judgment entered thereupon, becomes conclusive upon that issue, within the rule stated in the case cited,—that the defeated party is concluded by all the issues which might have been litigated; and we may assume that, had the plaintiff established the fact that the defendant did embezzle moneys of the plaintiff other than those in the Thirty-Third Street property, the court would have so found, and Uie judgment entered in the action upon such findings would have saved this action from the conclusive operation of that judgment. The judgment should be affirmed, with costs.  