
    Washington H. Taylor, App’lt, v. Catherine Taylor and Margaret Barnes, Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    Bar—Former adjudication.
    Plaintiff brought action alleging that defendant during a certain period embezzled large sums of money belonging to him and invested the same in certain premises. The court found that defendant did not embezzle large sums of money or invest the same. Held, that the gravamen of such action was the wrongful taking of the money, and that the judgment rendered therein was a bar to a subsequent action alleging embezzlement of large sums of money during the same period and the investment thereof in other premises.
    Appeal from a judgment overruling demurrers to the several answers of the defendants.
    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 St., in the city of Mew 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 Mew 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 tile 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.
    
      Noah Davis and Chas. Wehle, for app’lt; William Fullerton and Benj. Scharpe, for resp’ts.
   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 he made the subject o£ judicial investigation in this case, but claims that the plaintiff in either case was but pursuing a remedy in the nature of 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, hy the court that the defendant’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 wrongdoer, and for the purpose of affording relief as against the wrongdoer the court, by legal requirement, would adjudge the title to be in him. The investment of the moneys by the defendant did not create a cause of action independent of the 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; 33 St. Rep., 303, 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 wrere 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 money, 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 final 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 the 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.

Daniels, J., concurs.  