
    Mossler Company, Appellant, v. Oscar E. Cesare, Respondent.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Former adjudication—-Adjudication operative as bar or as conclusive evidence — Rule that former judgment must have been on the merits — What is a judgment on the merits in general —• How .' determined in Municipal Court of the city of New York.
    Whether a judgment of the Municipal Court of the city of New York was rendered upon the merits can be determined only upon an inspection of the minutes of the testimony taken on the trial.
    Where, in an action in the Municipal Court of the city of New York upon an account stated, the defendant pleads a former suit in bar, the so-called “ judgment roll ” in the prior action, which contains no testimony, is insufficient to sustain a r-uling that the judgment in the first action was res adjuiMeaia.
    
    Appeal by the plaintiff from a judgment dismissing the complaint, rendered in the Municipal Oourt of the city of Mew York, borough of Manhattan, first district.
    Strouse & Strauss (Alex. 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 thirty-eight dollars. 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 eight dollars and also a sale and delivery of goods to the defendant, in April, 1906, amounting to thirty dollars. 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.

It was error, therefore, for the court below to hold that the judgment of the first action was res adjudícala; and the judgment herein must be reversed.

Present, Gildersleeve, Seabury and Lehman, JJ.

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