
    George W. Everitt, Respondent, v. The New York Engraving & Printing Co., Appellant.
    (Supreme Court, Appellate Term,
    June, 1897.)
    1. Former adjudication.
    A judgment rendered in a prior- action between the same parties is conclusive as to all matters, adjudicated by the judgment, which the parties might have litigated as incident to the subject matter of the litigation.
    
      2. Statute of Frauds — Agreement performable within a year.
    Where an agreement may, consistently with its terms, be entirély performed within a.year from the time when it wás made, although it may not be probable or expected that it will be performed within that period, it is not void within the contemplation of the Statute of Frauds.
    3. Agreement for a time not fixed.
    An agreement, under which the defendant promises the plaintiff that if he will secure it the work of a publishing house, it will pay him ten per cent, monthly on all the work which it gets from the publishing house as long as it gets it, is valid and binds the defendants to pay the ten per cent, as long as it continues to receive the work.
    Everitt v. New York Engraving & Printing Co., 19 Mise. Rep. 360, affirmed. ■ i . ,
    Appeal bv defendant from affirmance by the City Court, General lerm, of a judgment in favor of plaintiff.
    Wilson & Bennett (J. L. Bennett, of counsel), for appellant.
    William Hildreth Field & Deshon (C. A. Deshon, of counsel), for respondent.
   McAdam, J.

The action is to recover $1,309.65 under contract made between the plaintiff and defendant in the spring of 1893, whereby the defendant agreed, in consideration of plaintiff securing for defendant Harper Brothers’ work, to pay plaintiff ten per cent, monthly on all the work that came to' the defendant from Harper Brothers as long as the defendant got it, and that the payments were to continue as long as the work came.

An action was brought in the Second District Court for the March, 1895, installment accruing under the contract, and a judgment rendered therefor in June, 1895, was affirmed by the Common Pleas General Term in December, 1895. 14 Misc. Rep. 580.

The defendant assured the plaintiff that if he procured the work it would not require his attention, and that he could go to California if he pleased, and would receive his check regularly.” The plaintiff under the agreement procured Harper Brothers’ work for the. defendant, and the latter has had it ever since.

On the trial the plaintiff offered the judgment-roll in the District Court action, claiming that it was res adjudicada as to every issue raised by the pleadings in this action, except the accounts which had been paid by Harper Brothers to the defendant upon which the plaintiff’s percentage was based. After these accounts, showing the percentage to be equal to that for which the jury subsequently rendered their verdict, had been proved, the plaintiff rested. The defendant thereupon moved for a nonsuit upon the ground that there was no evidence in the case that the plaintiff was the procuring cause of the commissions for the months sued for. The motion was denied. The defendant then offered to prove affirmatively that the plaintiff was not the procuring cause of any month’s commission sued for, whereupon the plaintiff admitted that he had rendered no services during the period for which commissions were claimed.

Under the contract as made and the interpretation given to it by the Common Pleas on' the District Court appeal the commissions payable to the plaintiff w,ere to continue as long .as the defendant did work for Harper Brothers, and were to apply to all such work without any new exertion on the part of the plaintiff.

The defendant also claimed that Harper Brothers had found fault with the payment of commission, and -that the defendant in consequence made a deduction on the work equal to the amount of the commissions. This constitutes no defense to. the action, for under the contract the plaintiff was to have commission on whatever amount the defendant received from the Harpers. The' plaintiff could not regulate the amount of the defendant’s charges; and whatever they were, his commissions were to be based upon them.

The defendant asks how it is possible for it to terminate such a contract and rid itself of the burden.' One easy mode would be to discontinue doing work for Harper Brothers, in which case as there would be no revenue from that source there would be nothing to which commissions could apply. But the defendant caniiot continue to do the work which the plaintiff originally influenced, and at the same time rid itself of its obligation to pay the plaintiff for bringing it to them. This is a matter which should have been weighed by the defendant before it made the contract. It was in its power then to protect itself' fully. Having failed to do so it cannot now. be heard to complain of its own indiscretion.

The judgment in the District Court action established the validity of the contract, and- all we have to dó now is to give to it its proper legal effect. The appellant claims that the judgment is not res acljudicata, and to sustain the proposition cites authorities holding that where a judgment may have proceeded upon either or any of two or more different and distinct facts, the party desiring to avail himself of the judgment as conclusive evidence upon some particular fact must show affirmatively that it went upon that fact, or else the question is open for a new contention. Lewis v. O. N. & P. Co., 125 N. Y. 341. But, as was held in Bell v. Merrifield, 109 id. 211, the fact that the particular point involved was adjudicated in the other action may appear either hy the record in that suit ” or by extrinsic evidence. In this instance the District Court record is printed in the appeal hook, and it clearly appears therefrom that the question of the existence and validity of the contract was directly involved in and decided by that action. The judgment rendered therein is, therefore, conclusive as to all matters adjudicated thereby or which the parties might have litigated as incident to the subject matter of the litigation. Rich v. Cochran, 151 N. Y. 127.

The question of the Statute of Frauds was considered upon the former appeal, and disposed of on the familiar rule that where the agreement may consistently with its. terms be entirely performed within a year from, the time it is made, although it may not he probable or expected that it will he performed within that period, it is not within the contemplation of the statute."

We find no error, and the judgment must he affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.  