
    Charles H. Nicoll, Respondent, v. William H. Karrick, Appellant.
    (Supreme Court, Appellate Term,
    June, 1899.)
    Former adjudication. — Not established by nonsuit.
    The defense of a former adjudication is not established by proof that the present plaintiff was nonsuited in a former action brought against the defendant upon the same cause of action as that now in suit.
    Appeal by the defendant from a judgment of the Municipal Court, second district, borough of The Bronx, rendered in favor of the plaintiff.
    John T. Easton, for appellant.
    William C. Timm, for respondent.
   MacLean, J.

The plaintiff based this action upon two several agreements or orders: one for the making of a photo-engraving of the defendant for use in a publication, at the agreed price of $100, and the other for a copy of that publication, at the agreed price of $25. The signing of the orders was admitted by the defendant, who, however, contended that the plaintiff had not kept his part of the undertaking, and had made false representations respecting the same, and also, for a separate and distinct defense, that a former action was brought against him to recover upon the same causes of action set forth in the complaint herein, and that upon a trial thereof judgment was rendered in his favor and against the plaintiff, and that by reason of such adjudication the plaintiff was estopped from maintaining this action. The memorandum of the decision or judgment in the action pleaded as an estoppel was a follows: “ Tried, motion to dismiss as to $100 granted, and as to $25, judgment for the defendant.” From this it appeared, and the learned justice rightly so held, that there had been an adjudication which was conclusive as to the second cause of action for the book, but as to the first cause of action, that for the engraving, the former trial had resulted only in a nonsuit, and the plaintiff was at liberty again to present his claim to the court. § 1209, Code Civ. Pro.; Wheeler v. Ruckman, 51 N. Y. 391. The evidence adduced upon the first trial is not presented, but it would appear to have been wanting in certain material respects, especially as to the making and use of the engraving. After hearing the evidence upon both sides, which was in a measure contradictory, the learned justice, upon evidence fully warranting such a determination, found in favor of the plaintiff and against the defendant, who, as was remarked, in effect, was so careless in his statements under oath as to discredit the significance of his testimony. The judgment should be affirmed, with costs.

Freedman, P. J., and Leventritt, J., concur.

Judgment affirmed, with costs.  