
    Martin J. Ward and Walter C. Weston, Respondents, v. Meyer L. Sire, Appellant.
    Bes ad judicata — a “ case ” on appeal from a judgment for a first installment of commissions is competent in an action to recover a second installment — it is not evidence of the fact that testimony appearing therein was actually given.
    
    The printed case on appeal from a judgment, affirmed by the Appellate Division, by which certain brokers recovered two installments of money due under a contract providing for the payment, of commissions upon the receipt of certain rents from a tenant procured by such brokers, is admissible, in a subsequent action brought to recover the remaining installments, for the "purpose of establishing the validity and construction of the contract.
    The record cannot be used in the second action to establish, of itself, an admission, by the defendant’s testimony appearing therein, that he had received from the tenant the amount, upon the payment of which further commissions were to become due.
    Appeal by the defendant, Meyer L. Sire, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 4th day of January,, ■ 1900, upon the verdict of a jury rendered by direction of the court..
    
      Albert I. Sire, for the appellant.
    
      Samuel A. Noyes, for the respondents.
   McLaughlin, J. :

The plaintiffs, real estate brokers, brought this action to recover ■ the last four installments mentioned in the following contract — a. balance alleged to be due them for services in leasing for the defendant certain real property:

“ New York, Oct. 28, ’95.
"1, the said M. J. Ward & Co., agree to accept the following payment, which shall be in full for commission, providing M. L. Sire.-leases the Stewart to R. A. Stranahan. Payment as follows :
“ $300 due when $ 5,000 Pd.
“ $300 “ “ $10,000 Pd.
“ $450 “ . “ $15,000.Pd.
“ $450 “ “ « • $20,000 Pd.
“$250 “ “ ' $25,000 Pd.
“$250 “ . $30,000 Pd.
“ I also further agree that no part of the without the said payments are made; $2,000 shall be duet
“ M. J. WARD.”

The Complaint alleged that in a prior action between the same-parties it- had been adjudged arid determined that the defendant made this Contract, with the plaintiffs, and that under it they were-entitled to receive from him the amount therein specified when he-had received from Stranahan the sum of $30,000* and that in the-prior action they had recovered the first two installments mentioned

—• over $10,000 and less than $15,000 having been then received'— and in this action thejr were entitled to recover c 1%gti.ptl?|§ii,[jpg,|p.l]-ments, he having received $30,000. ,m ni Imu nef sonriao Jwm-j oriT

The answer, among other thing, denied that the defendant was indebted to the plaintiffs in any sum whatever, or that $30,000 had been received from Stranahan, and it also alleged that the recovery and satisfaction of the judgment in the prior action was a satisfaction of the case of action set out in the complaint in this action.

Upon the trial it appeared that an appeal was taken by the defendant from the former judgment, which was affirmed by this ■court (36 App. Div. 639), and the printed case used on such appeal was received in evidence against the defendant’s objection and exception. After offering this record in evidence the plaintiffs rested. The defendant offered no evidence. The trial court thereupon directed a verdict for the plaintiffs, against the objection and ■exception of the defendant, for the amount claimed in the complaint and from the judgment entered thereon the defendant has •appealed..

The trial court held that the validity and construction of the contract referred to were settled and determined by the judgment in the prior action and that such construction was binding and conclu■sive not only upon the court but upon the parties in this action. That this ruling was correct cannot be seriously questioned. Numerous authorities might be cited to the effect that a judgment of a ■court of competent jurisdiction is final and conclusive, so long as it remains in force, between the parties as to all questions actually determined, as well as to those necessarily connected with the subject-matter of the litigation, either as .matter of claim or defense. (Pray v. Hegeman, 98 N. Y. 351; Jordan v. Van Epps, 85 id. 436 ; Smith v. Smith, 79 id. 634 ; Clemens v. Clemens, 37 id. 74 ; Sastle v. Noyes, 14 id. 329 ; Doty v. Brown, 4 id. 71.)

It is equally well settled that for the purpose of ascertaining what was in issue and determined by a formen judgment, the record of the former trial may be resorted to, and if this leaves the matter in doubt then paroi evidence of .that fact is admissible. (Campbell v. Rankin, 99 U. S. 261.)

The trial court, therefore, did not err in overruling the defendant’s objection and receiving this record ; but that record as such was only admissible for the purpose of establishing the contract; but whether it was proven that anything was due upon the contract ■depended upon the evidence offered upon the trial.

But it is urged by the respondents that the defendant testified upon the former trial — as appears from the record offered in evi■dence — that he had art that time received from Stranahan $30,000, and that this was sufficient to establish the allegations of the complaint on the trial of this action; But there is no force in this suggestión. The testimony given by the defendant on the former trial, as set out in the record on appeal from the judgment therein rendered, is not only not conclusive of the fact which it purports to-establish, (that fact not being there in issue), but it has no force whatever as evidence on this trial as tending to establish that $30,000 had been received by him. If the defendant gave such testimony, it could only be resorted to and used upon the last trial by proving that he did so testify on the former trial, and such ■ proof could be given only by calling a witness who would testify to that fact. The-record, so far as that fact was concerned, did not tend to establish it. It was not evidence of an admission by the defendant that $30,000-had been received, and, manifestly, did not prevent his proving the-contrary. No evidence whatever was given showing or tending to show that the defendant, prior to the commencement of the action,, had received the sum from Sfranahan which entitled the -plaintiffs,, under the former judgment, to recover the amount claimed in this-action.

It follows, therefore, that the court erred in directing a verdict for the plaintiffs ; and, for the error thus committed, the judgment appealed from must be reversed and a new trial granted, with costs to .appellant *to abide the event.

Patterson, Rhmsey and Ingraham, JJ., concurred.

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