
    Chauncey A. Lawton, Respondent, v. William Hudson, Appellant.
    Res ad judicata — a former judgment is a bar as to all matters which were or. might ■ ’ ham been litigated.
    
    The complaint in an action alleged, that a chattel mortgage* given by the- plain* tiff to the defendant, Avas usurious and void, and also-that it should be satis- . fled because of a tender and payment of the amount secured thereby, and fur- ,. ther "alleged:;,that on December. 13; 1895,.,the,defendant -wrongfully "took possession of the mortgaged* chattels and" proposed to, sell them, and-'-demanded judgment that the mortgage be declared usurious or satisfied by tender and payment, and also, that a sale by the defendant be restrained, and that the chattels be returned.
    The defendant answered, alleging that on December 18, 1895, the plaintiff brought an action against the defendant to recover the same chattels, that there was involved therein the validity of the mortgage and the right of the defendant to take the chattels thereunder, and that the defendant obtained in said action a verdict of no cause of action, and that judgment therein was entered in his favor; to which the plaintiff replied admitting that the defendant’s right to take such property was at issue in that action, and that a verdict of no cause of action was rendered on such issue and that judgment in favor of the defendant was entered thereon.
    
      Held, that such judgment constituted a bar to the present action, and that the question whether or not the court in the former action passed upon the question of usury, a matter within the issues, was not material.
    Appeal by the defendant, William Hudson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county' of Saratoga on the 28th day of October, 1896, upon the decision of the court rendered after a trial at the Saratoga Special Term, the parties having waived a trial by jury.
    This appeal is brought on to be heard upon what purports to be the judgment roll; the ease is certified to by the attorneys as containing the judgment roll and the defendant’s exceptions to the decision.
    From this record it appears that the plaintiff brought his action complaining that he had theretofore executed and delivered to defendant a certain chattel mortgage; that said chattel mortgage was usurious and void; that he furnished to the defendant board and lodgings upon, the understanding that the value. thereof was to be applied towards the amount due upon the said chattel mortgage; that the defendant refused to apply the same excepting a small portion thereof. He further alleges that the amount due upon said bond and mortgage has all been paid except the sum of forty dollars prior to the commencement of this action, and that plaintiff had tendered the sum of forty dollars and asked the defendant to sign a satisfaction of the mortgage; that the defendant refused such tender, and refused to sign such satisfaction. And he further alleges that on or about the 12th of December, 1895, in spite of the facts before set out, the defendant wrongfully took from the possession of the plaintiff the goods and chattels set out in said mortgage, together with other.goods and chattels, and that he still unjustly detains the same from the possession of the plaintiff, and has advertised the same for sale under said chattel mortgage, and demands judgment that said chattel mortgage be declared to be usurious and void,' or,- in case that it. is found to be a valid mortgage, that it be decreed that defendant has lost his lien upon the property by reason of the said tender and payment, and that the defendant be restrained from disposing of or selling the articles so taken from the possession of'the plaintiff, and that he be required to return the same to the plaintiff, or, in ..the évent of the same not being returned, that he be directed to pay the value thereof, which the plaintiff alleges to be the sum of $250.
    The defendant in a supplemental answer, to the plaintiff’s complaint,, amongst other things, alleges:
    •“ First,, that ' plaintiff herein,, on or about December 18th, 1895, commenced an action against this defendant in Justice’s Court, in •Saratoga Springs, N. Y., for the return of certain personal property, - •or the value thereof- if not returned, which plaintiff claimed to have owned, and that defendant had taken from plaintiff, by virtue of the chattel mortgage set out in the complaint herein, without authority or consent of the plaintiff.' ■ ■ '
    
      “ Second, that defendant, in said action in Justice’s Court, denied said complaint and alleged said property was taken by him by virtue '.of the aforesaid chattel mortgage given by plaintiff to defendant, under proceedings to foreclose said mortgage, and that the defendant had a right to take the said property on said mortgage claim.” • • ' . . ■
    Such supplemental answer then proceeded to allege that the defendant’s right to take such property by virtue of the said mortgage and the validity of said mortgage given -by plaintiff to defendant- were at issue' in the- Justice’s Court, and that the validity of ■ said mortgage was tried and, passed upon in that' action,; and that ' the trial resulted in a verdict of no cause of- action in favor of the defendant and against the plaintiff, thus establishing the- defendant’s claim that Said mortgage was valid and that- the-defendant had •the right to .seize, take and sell said property under and by virtue of said chattel mortgage, and that judgment was entered in favor of the defendant and against this plaintiff, and pleads that such jtidgment of the Justice’s Court now remains in full force and effect between plaintiff and defendant, and that by reason thereof plaintiff is estopped from contesting the validity of such mortgage.
    The plaintiff made reply to the supplemental answer, a portion of which is as follows: “ First, plaintiff admits the first and second counts of said answer, except that portion of the first count in which it is alleged that defendant had taken from plaintiff, by virtue of the chattel mortgage set out in the complaint herein, and as to that portion of said count the plaintiff has no knowledge or information sufficient to form a belief, and, therefore, denies the same.”
    In the 2d paragraph of the reply the plaintiff denies all the other counts in said answer and each and every allegation thereof, “ except that plaintiff admits that the defendants right to take said property was at issue in said action, and that a verdict of no cause of action was rendered against plaintiff on said issue and judgment entered thereon, and the same is in full force and effect. Plaintiff hereby intending do deny and denying that the question of the validity of said chattel mortgage was at issue, or that said question was tried, passed. upon or determined in said action, or that plaintiff is estopped from contesting the validity of said mortgage herein.”
    The case was tiled during the October term of the Supreme Court in Saratoga county, and prior thereto, and on the twenty-eighth of September, the attorneys for the plaintiff and defendant entered into a stipulation, a portion of which is as follows : “ It is admitted that the chattel mortgage, a copy of which is attached to the complaint, in this action, is the same chattel mortgage that plaintiff introduced in evidence in the previous action in Jnstice’s Court. * * * and which is referred to in defendant’s supplemental answer in this action, and the same mortgage on which defendant claimed that he seized and advertised plaintiff’s property for . sale.” .
    On the twenty-first day of September the defendant made a demand upon the plaintiff for a bill of particulars of the items, and each specific article of the “ other goods and chattels ” which plaintiff alleges that defendant “ wrongfully took from the possession of the plaintiff, together with the goods and chattels set out in said chattel mortgage.”
    
      In response to- that demand plaintiff served.upon the.defendant’s attorney a bill of particulars setting forth various articles, of personal property, and concluding with these words : “ Being the same articles set out in plaintiffs complaint in the action heretofore tried between the parties hereto in Justice’s Court in the town of Saratoga Springs,. N. Y., before William McNulty, Justice.” ■
    The' trial court made no finding as to' the action in the Justice’s Court, but found that the defendant, on or about the 12th of December, .1895, seized the-goods, and chattels mentioned in said mortgage, and took them from the possession of plaintiff against his will and without his consent, and has not returned them to said- plaintiff, and that the value of the goods was $200, and he also found that -the chattel mortgage, was void for usury and -should be set aside, and that the defendant in -taking such goods mentioned in the mortgage converted them to his own use, against the right of the • plaintiff and lawful owner arid possessor, and that the plaintiff is entitled to the return of the saíne, or their, value of -.$200, and in case-they cannot- be returned, judgment should be rendered in favor of the .plaintiff and.against the defendant in pursuance thereof, together with the costs of the action.
    
      Jesse Stiles, for the appellant.
    
      J. W. Houghton, for the respondent.
   Herrick, J.:

. The plaintiff, by his reply to the defendant’s supplemental answer, admitted the commencement of the action in the Justice’s Court by the plaintiff against the defendant for the return of certain personal property or the value thereof, as stated in the 1st paragraph-of the-supplemental answer, but did not admit that, portion thereof which . asserted “ which plaintiff claimed to have-owned, and that defendant had taken from plaintiff by virtue of the chattel mortgage'set out in -the complaint herein, without authority or- consent of the plaintiff.” He. admitted the 2d paragraph of the supplemental answer, .which set forth that the. defendant in the Justice’s Court alleged ' that lie-had. taken such property by virtue of the chattel mortgage given.', by -the plaintiff to the defendant, " and .expressly admits that the defendant’s right to take said- property was at-issue in the action -. in the Justice’s Court, and that a judgment was entered therein and by the written stipulation he admits that the mortgage in question in this action is the same mortgage that was introduced in evidence in the Justice’s Court, and the same mortgage under which the defendant claims he seized and advertised plaintiff’s property for sale; and in his bill of particulars he admits that the articles referred to in his complaint as having been wrongfully taken by the defendant, under and by virtue of the chattel mortgage, which he-claims to be usurious and void, together with “other goods and chattels,” are the same articles set out in his complaint in the action brought by him against the defendant in the'Justice’s Court, and which resulted in a judgment in favor of the defendant and against the plaintiff. It, therefore, plainly appears that the right to the possession of these same articles in question here has heretofore been tried between the same parties in the Justice’s Court; that the defendant there relied upon his right under the chattel mortgage to take such property, and the rightfulness of that claim must have necessarily been passed upon by that, court in determining the issue raised between the parties.

These admissions were matters of record in the case, and were conclusive upon the parties and the court, and thé court had no authority to disregard them. (Dale v. Gilbert, 128 N. Y. 625.)

They have been made a part of the judgment roll filed in the case, and are certified to us as part of the record upon which this appeal is to be heard, and we must so consider them:

There is no pretense but what the Justice’s Court had jurisdiction of the parties and of the subject-matter, and the judgment rendered is conclusive between the parties upon every question necessarily embraced in the judgment, or upon every question within the issues that could have been litigated. (Gollins v. Bennett, 46 N. Y. 490; Malloney v. Horan, 49 id. 111; Dunham v. Bower, 77 id. 76 ; Reich v. Cochran, 151 id. 122, 127; Griffin v. L. I. R. R. Co., 102 id. 449.)

It makes no difference whether the question as to whether the mortgage was or was not usurious was passed upon in the former action;. all questions as to the validity of the mortgage were fairly up when the defendant justified the taking of the property by asserting his. mortgage.

The- principal issue there,;as here, was whether the defendant’s taking of the property was or .was not wrongful, and that question has been passed upon.

When an action has "once been determined, and when, through lack of knowledge or by design, the plaintiff has neglected or failed to ■ properly present the facts in his cáse, or to assert the proper reply to his adversary’s defense or counterclaim, it would be intolerable to permit him to maintain another action for the same thing upon the plea that the fact's he should have asserted and proved to maintain his former action, were not passed upon in such action.

It appearing,'therefore, from-,the record before us that the- subject-matter of -this action has been litigated in a. former, action between the same parties, and a judgment therein "rendered which stands unreversed,' the judgment herein'appealed from should be reversed and a new trial ordered, costs to abide the event.

All concurred.

Judgment reversed and a new trial granted, costs to abide the event.  