
    (65 Misc. Rep. 40.)
    MOSSLER CO. v. CESARE.
    (Supreme Court, Appellate Term.
    November 12, 1909.)
    1. Judgment (§ 544*)—Municipal Court—Res Judicata.
    Code Civ. Proc. § 1209, providing that a final judgment, dismissing the 'complaint, either before or after trial, does not prevent a new action for the same cause, .unless it expressly declares, or it appears by the judgment roll, that it is rendered upon the merits, does not apply to the Municipal Court.
    [Ed. Note.—For other cases, see Judgment, Dec. Dig. § 544.*]
    2. Judgment (§ 956*)—Municipal Court—Judgment Roll—“Res Judicata.”
    Where a so-called judgment roll of the Municipal Court contains no testimony taken upon the trial, and the only evidence of any judgment having been entered was a statement: “As the proof stands, and upon the testimony before me, the plaintiff cannot succeed. Judgment for defendant”—the judgment was not shown to be on the merits, so as to be con- . elusive, since the only way it can be determined whether or not a judgment of the Municipal Court is upon the merits is by an inspection of the minutes of the testimony taken.
    [Ed. Note.—For other cases, see Judgment, Déc. Dig. § 956.*
    For other definitions, see Words and Phrases, vol. 7, pp. 6126-6130; vol. 8, pp. 7786, 7787.]
    ♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes-
    Appeal from Municipal Court, Borough of Manhattan, First District.
    Action by the Mossier Company against Oscar E. Cesare. Judgment for defendant, and plaintiff appeals.
    Reversed, and new trial ordered.
    Argued before GILDERSEEEVE, P. J„ and SEABURY and LEHMAN, JJ.
    Strouse & Strauss (Alex. S. Strouse, of counsel), for appellant.
    Thomas P, Hall, for respondent.
   PER CURIAM.

The plaintiff brought an action against the defendant in October,. 1908, upon a complaint alleging that about October 1; 1908, an account .was stated between the parties, in which a balance was found due the plaintiff of the sum of $38. In February, 1909, the present action was begun, and the complaint sets up an account stated between the parties in November, 1905, in which there was a balance found due the plaintiff of $8, and also a sale and delivery of goods to the defendant in April, 1906, amounting to $30. The defendant pleaded a former suit in bar, and offered upon the trial what was said to be the “judgment roll” in that prior action. This so-called judgment roll contains no testimony taken upon the first trial, if any there was, and the only evidence of any judgment having been entered against the plaintiff therein:

“As the proof stands, and upon the testimony before me, the plaintiff cannot, succeed. Judgment for the defendant.”

Whether or not a judgment in accordance with the foregoing was entered does not appear, nor is it material. Section 1209 of the Code of Civil Procedure does not apply to the Municipal Court, and, if it did, it would not aid the defendant in his position. The only way it can be determined whether or not a judgment of the Municipal Court is upon the merits is by an inspection of the minutes of the testimony taken. Stecher v. Ind. Order Free Sons of Judah, 45 Misc. Rep. 340, 90 N. Y. Supp. 332. It was error, therefore, for the court below to hold that the judgment of the first action was res adjudicata, and the judgment herein must be reversed.

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