
    John J. Hadcock, v. William O’Rowke.
    
      (Superior Court of Buffalo, General Term,,
    
    
      Filed July 1888.)
    
    1. Res-adjudicata—When matter involved in former action,
    In a former action brought by this plaintiff against this defendant, for an accounting, and which grew out of the sale of a certain canal boat and some mules, etc., the referee took and stated the accounts between the parties, and reached a fixed determinate result. In another former action brought by the defendant to replevin certain canal boats which grew out of the same subject-matter, the same referee was required to determine the-amount due from O’Rowke to Hadcock, by virtue of the property seized, and in order to fix the amount Hadcock should pay, or that O’Rowke should be charged with, it necessitated an enquiry into the value of the property taken. In so doing the mules and harness were considered, their value fixed and a certain sum found in said accounting deducted. Then and not until then was the referee able to determine in whom the title to-the canal boats rested and otherwise make up his judgment This action was brought to recover the value of these same mules and harness. Held, that the subject of this action was involved and passed upon in the replevin action. That it was res adjudicata.
    
    2. Same—Rule as to estoppel by former adjudication—Extent of.
    The rule, in regard to the estoppel of a former adjudication is, that it extends to any material matter within the issues, which was expressly litigated and determined, and also to those matters, which although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were ^r were not actually litigated or considered. Following Fray v. Hegeman, 98 N Y 351.
    On the 7th day of July, 1876, the plantiff commenced an action against the defendant for an accounting.
    The complaint, among other things, alleged that plaintiff was the owner of the canal boat “Dr. M. S. Kittinger.” That in 1873, plaintiff contracted to purchase of the defendant, the canal boat “Jay Pettibone,” together with four-mules and harness, for the sum of $6,000. For the purpose of securing the payment of said sum, plaintiff made and executed twelve promissory notes of $500 each, payable at different dates; as security for the payment of said notes, plantiff made and executed a chattel mortgage upon the canal boat “ Kittinger,” alleged payment of the notes and mortgage in full. Then alleges a seizure of the boats by plaintiff, advertising them for sale under the contract of purchase, and mortgage, then states “that if upon an adjustment of the account between said parties, there shall bo found to be anything due to the defendant, on account of debt mentioned in said contract or chattel mortgage, the plaintiff is ready and willing to pay the same.”
    The prayer for the judgment asked that the notes and chattel mortgáge be surrendered up and cancelled; that plaintiff execute a bill of sale of the canal boat “ Pettibone,” and for judgment in favor of plaintiff for any sum which may be found his due upon an accounting, and for such other and further relief as the court shall deem just and proper.
    The answer set up matter in defense, and prayed judgment, “ that the plaintiff may take nothing by this action; and that in case the court shall order an accounting this defendant may have judgment against the plaintiff for the amount which may be found due defendant, with interest and costs.”
    The cause was referred and an accounting had. The referee found that there was due from the plaintiff to defendant $136.38, and as matter of law, “That the said defendant is entitled to judgment, dismissing the plaintiff’s complaint herein, with costs.” Orders judgment accordingly. Judgment was thereafter entered confirming the report of the referee, which states: “ That on the 7th day of July, 1876, there was due from the said plaintiff to the said defendant, upon the notes secured by the chattel mortgage and contract mentioned in the complaint, over and above all demands, counter-claims and set-offs, which the plaintiff held against the said defendant, the sum of $136.38; that the complaint of the said plaintiff be and the same is hereby dismissed.”
    On the 20th day of July, 1876, the defendant commenced, an action of replevin against the plaintiff.
    The complaint alleged that he was the owner of the boat “Pettibone,” her tackle, apparel and furniture, and two sets of harness. For a second cause of action, alleges the giving of the said notes heretofore mentioned, the execution of the mortgage upon the “ Kittinger,” claimed default in payment, a demand of the property, and refusal to deliver, prayed judgment for the possession of the property, with damages for detention. The defendant therein set up matter of defense, and also alleged the pendency of the first mentioned action as a bar, prayed judgment for the delivery of the property, or its value. This action was referred to the same referee, a trial was had, upon which the defendant introduced in evidence the judgment and judgment roll obtained in the first action.
    The referee found that there was due upon the said notes and mortgage the sum of $126.38; that the plaintiff took from defendant’s possession, and without his consent, four mules and four harnesses, and appropriated them to his own use; that they were worth $770.
    “ That, at the time of the commencement of this action, the said twelve promissory notes, and the interest thereon, had been fully paid by the defendant to the-plaintiff; and the plaintiff was then indebted to the defendant in the sum of $643.28 over and above all demands, counter-claims and set-offs, being the difference between the amount due from the defendant to the plaintiff on the 7th day of July, 1876, and interest thereon to July 21, 1876, and the value of said mules and harness, taken by the plaintiff from this defendant on that date.” Then awards a return of the canal boats, or, in the alternative, fixes their value, and awards damages for the detention of the property, but awards nothing on account of the mules and harness. An appeal was taken from the judgment entered upon the report to the general term of this court.
    The judgment was affirmed.
    The present action is brought to recover the value of the mules and harness.
    
      E. C. Bobbins, for pl’ff; James M. Humphrey, for def’t.
   Hatch, J.

The claim of the plaintiff is that the rights of the parties with respect to the subject-matter of this action were determined by the adjudications had in the two previous actions. He contents himself, therefore, by proving the reports of the referee, and judgment-rolls in the actions, and claims to recover, on account thereof, the value of the mules and harness, as found by the referee after deducting the .sum found due defendant in the accounting action, with which sum he was credited in the replevin action. An examination of the record discloses the fact that all of the matters in dispute were litigated in the two actions noted, and from the issues framed therein, it appears that the referee was called upon to pass on all the questions to which his report refers, and which embraces the subject-matter in controversy here. In the first action he took and stated the accounts between the parties, and reached a fixed, determinate result.

In the second action he was required to determine the amount due from O’Rowrke to Hadcock by virtue of the property seized, in order to fix the amount Hadcock should pay, or that O’Rowrke should be charged with ; this necessitated an inquiry into the value of the property taken. In so doing, the mules and harness were considered, their value fixed, the $126.38 deducted. Then, and not until then, was the referee able to determine in whom the title to the canal boats rested, and otherwise make up his judgment. The subject-matter of this action was, therefore, involved and passed upon in the replevin action. The referee could not render judgment for the return of the mules or their value, for the reason that they were not embraced within the property replevined, but were seized without process, and could only be considered in determining the rights of the parties with respect to the property replevined.

The rule with regard to the estoppel of a former adjudication is well settled. As stated by Judge Andrews, it “extends to any material matter within the issues, which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered.” Pray v. Hegeman, 98 N. Y., 351; Griffin v. Long Island R. R. Co., 102 N. Y, 449, 452 ; 2 N. Y. State Rep., 454; Van Gelder v. Hollenbeck, 12 N. Y. State Rep., 185.

This rule is conceded by defendant, but his contention is that the subject-matter of this action was not embraced within the issues raised by the former actions; that the only effect of the adjudication in the first action was, to determine whether anything was due from the plaintiff to the defendant, and that there having been found a sum due defendant, the purpose of the action was accomplished, and the only judgment which could be rendered, was to dismiss the complaint, and that such is the only effect of the judgment rendered therein. That as to the replevin action, the mules were not embraced in the property replevined, and consequently the referee could determine no •question involving other property. The discussion already had disposes of the latter proposition adversely to defendant. As to the other, defendant relies upon Campbell v. Consalus (25 N. Y., 613). An examination of that case shows a radical distinction between it and the one at bar.

That was an action to foreclose a mortgage. Prior to such action being brought, the defendant therein had brought an action against the assignor of the mortgage, alleging in his complaint that the mortgage had been fully paid, that a request to satisfy the mortgage had been refused, and for relief asked that the mortgage be cancelled and satisfied of record. Yo accounting was asked for, nor was there any offer to pay any sum which might be found due thereon. The issue raised by the answer was, whether the mortgage had been paid; there was no demand for affirmative relief. A trial was had, and a sum found due upon the mortgage, judgment was thereupon entered dismissing the complaint. In disposing of the question the court held that under the issue framed, the only question was, whether there was •anything due upon tho mortgage, and when that was determined in favor of the defendant, the object of the action was accomplished; that while an accounting might have been had, and was probably necessary, as determining the issue, yet the sum due was simply incidental and collateral, and as to those matters could not work an estoppel. It is perfectly clear, however, that if the parties had demanded affirmative relief by an offer te pay the sum found due or a demand for judgment, establishing the amount due, the rule would have been different. In the case under consideration, the plaintiff in terms offered to pay any amount found due, and owing by him, to defendant. The defendant asked affirmative relief, that if an accounting was ordered (which was done), then, that he should have judgment for the amount with interest. The decision in the Campbell case, was the result of a lack of issue. The decision here must be the reverse, by the presence of it. No case has been called to the court’s attention which enlarges the doctrine contained in Campbell v. Consalus. If we assume that the judgment entered in the acconnting action is simply a judgment of dismissal, I do not think that defendant is aided. The issue raised by the pleadings, and the report of the referee, clearly authorized the entry of a judgment in favor of defendant, fqr the amount found due. The parties have had a trial (so far as the record shows), fair in every respect, in which all the matters here have been litigated and determined. It is for the benefit of parties, that litigation should sometimes find an end; with two adjudications upon the same question, between these parties, before me, 1 find that a due consideration for common justice requires a holding, that the findings heretofore liad are res adjudicata, both as to the title of the property involved and its value.  