
    Harrison v. Wood.
    (Before Duer, Campbell, and Bosworth, J.J.)
    February, 18;
    February, 26.
    Judgment for the defendant upon a dismissal of the complaint, in an action at law, is no bar to a subsequent action by the plaintiff for the same cause.
    Appeal from a judgment at special term in favor of the plaintiff.
    The action was to recover damages for an assault and battery, and was tried before the Chief Justice and a jury in October, 1852.
    The answer, after denying the assault and battery, set up as a defence, that the plaintiff in May, 1850, had commenced an, action in the Supreme Court for the identical cause of action set. forth in the complaint; that an issue of fact was joined thereon, and the same was brought to trial, and a judgment .rendered against the plaintiff in favor of the defendant. The record of this judgment was produced upon the trial, and it appearing that the judgment was for the dismissal of -the complaint by default, the Chief Justice overruled the defence. Upon the testimony the jury found- a verdict in favor- of the plaintiff for $240. The counsel for the defendant having excepted to the ruling of the Chief Justice, the only question now was whether the exception was well taken.
    
      E. Sandford, for the defendant,
    insisted that—
    The judgment for the defendant in the Supreme Court barred a subsequent action between the same parties for the same cause of action.
    The plaintiff had an opportunity to litigate his difficulty xwith the defendant in a tribunal of his own selection, and the judgment of that tribunal should be, and is, final and conclusive upon all matters that could have been litigated in that action. If the plaintiff chose another court in which to try his cause of action, he should have voluntarily withdrawn his action in the Supreme Court, and not suffered the judgment of the court to be rendered against him.
    The counsel cited Le Guen v. Gouverneur, 1 John Ca. 492. Ogsbury v. Lafarge, 2 Comst. 113. Brown v. Embury, 3 Comst. 511.
    
      J. Edgar, for the plaintiff,
    contended that—
    I. The disposal of the former suit was not such as to determine the rights-of the parties. 1. The dismissal of the complaint in that suit was by an order upon motion, which did not operate as a verdict and judgment to conclude the rights of the parties. (3 Code Reporter, 241 and 37. 5 Pr. Rep., p. 30.) 2. The judgment in the first case must be viewed in the same light with a judgment as in case of nonsuit. (6 Pr. Rep., p. 218.) 3. The determination of the first action was equivalent to a nonsuit; and the costs, in that case, were paid before a second action was commenced.
    II. To bar a recovery in a second action for the same cause, it must appear not only that the same questions were in issue in a former suit, but also that they were distinctly considered and passed upon in such suit. (Wood v. Jackson, 8 Wendell, p. 35. Lawrence v. Hunt, 10 Id. 84. Young v. Rummell, 2 Hill. 481. McKnight v. Dunlop, 4 Bar. Su. Rep. 36. Quackenbush v. Ehle, 5 Id. 469.)
    III. There is no evidence that the facts of the case had ever previously been passed upon, or in question before a court ' or jury.
    IV. The judgment should be affirmed, with costs.
   By the Court.

The dismissal of a complaint under the Code, in an action at law, we aré clearly of opinion has no other effect than that of a nonsuit under the former practice. There is a change of name, and nothing more. The Chief Justice was therefore correct in holding that the judgment in the former action which was relied on as- a defence, was no bar to the plaintiff’s recovery.

Whether an absolute bar may not be created by the dismissal of the complaint, when no other than equitable relief is sought, and the cause has been heard at special term, is a different question, upon which we are not to be understood as intimating any opinion.

The judgment must be affirmed, with costs.  