
    Leonard Jacob, Appellant, v. The Town of Oyster Bay and Others, Respondents.
    (No. 2.)
    Second Department,
    December, 1905.
    Res . adjudicaba—determination in. proceeding for forcible entry and detainer bars subsequent proceeding by defendant — determination thereof adverse to agent of owner is res adjudicata as against owner.
    A determination in a proceeding for forcible entry and detainer in favor of tije petitioner is res adjudicata and bars a subsequent proceeding of the same nature by the defendant for an alleged forcible entry and detainer of a building upon the same premises by the former petitioner.
    
      Though such former proceeding was against the agent' of the alleged owner of the land, such determination against the agent is res adjudieata as against the principal, if the agent was acting within the scope of his authority.
    Appeal by the petitioner, Leonard Jacob, from an order of the County Court of ¡Nassau county, entered in the office of the clerk of the county of ¡Nassau on the 21st day of September, 1904, dismissing the appellant’s petition.
    
      Daviid C. Bennett, Jr., for the appellant.
    
      Henry A. Monfort [Halstead Soudder with him on the brief], for the respondents.
   Jenks, J.:

The learned County Court held that the plea of res adjudicata based upon the final order in Town of Oyster Bay v. William H. Jacob was good, and dismissed the petition. The record in that proceeding was read in evidence. The final order therein is affirmed by us at this term of the court. In Town of Oyster Bay v. Jacob (109 App. Div. 613) the petition was based upon the right of possession to the premises known as East Beach. It was alleged that on March 30, 1904, Mr. William H. Jacob had forcibly entered the premises, and thereupon and thereafter was in forcible detainer of them. That proceeding was begun on April 15, 1904, issue was joined, and upon a verdict rendered by the jury for the petitioner the final order was entered on May 4, 1904, which determined that Mr. William H. Jacob had been guilty of a forcible entry and detainer and directed the issue of a warrant of removal. Therefore, there was an adjudication as to the town’s right of possession to the premises certainly as of April 15, 1904, against Mr. William H. Jacob. The petition of Mr. Leonard Jacob in this proceeding is based upon a forcible entry upon a small house on the same premises by the said town on April 2, 1904, and its detainer thereof. There is no contention that the petitioner’s rights in the house are different from those in the premises whereon it is situate, which, admittedly, are but a small part of East Beach, and are wholly within its territory. Hence, any determination in such a proceeding as to East Beach would cover the premises involved in this proceeding. The acts complained of in this proceeding are part of the continued physical struggle between the town and the retainers of the Jacob family for the possession of this neclc of sand. It seems to me that a final order that determined that on April 20, 1904;' the town was entitled to the possession Of the premises in a .proceeding based upon the forcible entry and detainer of Mr. William H. Jacob, in-proceedings wherein the plaintiff pleaded such entry and detainer and gave evidence of both acts, and wherein the ¡question of entry and detainer were submitted to the jury, which returned a general verdict for the town, is res adjudicata as against Mr. William H. Jacob in his proceedings for the town’s forcible entry and detainer on the same premises on April 2, 1904. In the absence of proof it is. assumed that the litigation involved all alleged in the petition and the final Order, and covered the whole ground thereof, (Matter of Straut, 126 N. Y. 201, 211.) The final order is “evidence of the- right and extent of the plaintiff’s possession, and the defendant is estopped from contesting the same.” (Black Judg. [2d ed.] § 663.)

Moreover, in Town of Oyster Bay v. Jacob, Mr. Jacob pleaded affirmatively that he, as agent for Leonard Jacob, was in quiet possession of all the premises except the premises impro ved by the small house for more than three years, and that as to the premises thus excluded, .while he as agent and Leonard Jacob were in possession thereof the town on April 2, 1904, was guilty of a forcible entry and detainer thereof. The learned counsel for the appellant would avoid the effect of this-plea, inasmuch as he says that the defendant in Town of Oyster Bay v. Jacob offered no evidence upon this subject, and the issue was not submitted to' the jury. ■ But I find that the defendant examined the petitioner’s witness, MeOahill, at great length on the subject by a series of qués^ tions that tended to . establish this affirmative plea. In Thorn v. De Breteuil (179 N. Y. 64, 82), the court, per G-bay, J., say: “ The rule has also been stated upon the authorities ráther appropriately to this case in this wisethat the estoppel of a judgment by a court of competent jurisdiction extends to those matters which, though not expressly determined, are comprehended and involved in the thing expressly stated and decided. Hence, it is not necessary to the' conclusiveness of the former judgment that issue should have been taken upon the precise point controverted in the second action.’ (Am. & Eng. Ency. of Law, vol. 24, p. 766.)”

I have.heretofore dealt with Mr. William H. Jacob.- The appellant contends that inasmuch as this proceeding is instituted by Mr. Leonard Jacob, the rule of res adyudicata does not apply. I think otherwise. In American and English Encyclopedia of Law (Vol. 24 [2d ed.], p. 751) it is said that the weight of authority supports the rule that a j udgment in a suit wherein an agent or servant is the party prosecuting or defending under the authority or in the right of the principal or master is conclusive for or- against the principal or master if it appear that the agent or servant was acting for the principal or master within the scope of his authority, or in the absence of such authority if if appear that there was ratification. (See, too, Stearns v. Shepard & Morse L. Co., No. 1, 91 App. Div. 49; Black Judg. [2d ed.] § 578; Emery v. Fowler, 39 Maine, 326; Anderson v. West Chicago St. R. R. Co., 200 111. 329, 334, and authorities cited; Wells Bes Adj. §§ 63, 64; Herm. Estop. [2d ed.] § 152; Big. Estop. [5th ed.] 120.) In Town of Oyster Bay v. Jacob the latter answered that he was the agent and custodian for Leonard Jacob, the owner, and that as such he had been in possession, and further that the town had forcibly entered upon the premises then - in possession of Leonard J acob and himself as agent. He testifies that he had charge of the property ; that he was the son of Leonard Jacob, who had resided for years on premises adjacent thereto. He testifies to his entrance upon the land in assertion of his right as agent and custodian and that of his father and the continuous physical occupation thereof by his retainers for days and months under such title and claim of light of possession. In the present proceeding one of the retainers kept there by Mr. William H. Jacob testifies that he went there under the employment of Mr. Leonard Jacob to live and-to keep guard, and that he found Mr. William H. Jacob and other retainers there. It appears that immediately upon the determination -in the former proceeding the persons in charge left the premises. Mr. Leonard Jacob is not a witness, and there is no attempt to deny or impugn the authority of Mr. William H. Jacob as agent or custodian. I think that .upon the evidence the rule indicated supra applies, and that this petitioner is bound by the adjudication in Town of Oyster Bay v. Jacob. It is said in Greenleaf on Evidence (Vol. 2 [15th ed.], § 61) that if there are peculiar relations-between the parties, such as that of father and son, the presumption becomes more vehement, whether there was an agency in fact or not, and the duty of disavowal is more urgent.”

It .cannot be the rule that the principal could always, in effect, obtain a second trial by plea that the first trial was conducted by his agent.

The order must be affirmed, with costs.

Hibschberg, P. J., Bartlett, Woodward and Miller, JJ., concurred.

Final order of the County Court of FTassau county affirmed, with costs. .. ' • 
      
      See 2d ed.—[Rep,
     