
    John H. Springer, Resp’t, v. Julius Bien et al., App’lts.
    
      (New York Common Pleas, General Term
    
    
      Filed June 2, 1890.)
    
    1. Res adjudicata — Does not apply to collateral matters.
    The principle of res adjudicata does not apply to matters raised only incidentally or collaterally.
    2. Same.
    In a former action for an injunction against using a name and trademark brought by defendants against plaintiff and others the complaint contained an allegation in regard to the compensation to be paid plaintiff the same as in the complaint herein,which was admitted by the answer therein, but the court notwithstanding such admission made a finding thereon. Held, that there was no issue of fact on that question and that the finding was not binding on the parties.
    3. Pleading — Reply.
    The answer alleged that the agreement sued upon was not to be performed within one year and there was no note or memorandum thereof in writing. Neld, that this was not a counterclaim, but a defense requiring no reply.
    4. Statute oe frauds — Does not preclude recovery for services actually done.
    The statute of frauds does not preclude a party from recovering for work actually done or services rendered under a contract obnoxious to such statute.
    Appeal from an interlocutory judgment rendered at an equity term of this court in favor of the plaintiff.
    
      Franklin Bien, for app’lts; Gildersleeve, Palmer & Boothby, for resp’t.
   Bookstaver, J.

This is an action in equity brought by the plaintiff against the defendants, constituting the firm of Julius Bien & Co., for an accounting as to moneys received by them since May 4, 1889, upon orders for theatrical engraving procured by the plaintiff for them prior to that time, under a contract by which they agreed to pay the plaintiff ten per cent on all moneys received by them on orders for such engraving brought by the plaintiff to them, which ten per cent was to be paid as such moneys were received by the defendants from such orders.

All the material allegations in the complaint, except the terms of the agreement and the allegation that there was anything due the plaintiff, were either admitted by the answer or upon the trial of the action. And the findings of fact in respect to that agreement made by the learned chief justice were fully supported by the evidence in the case. Indeed we do not understand the appellants to seriously challenge any of them upon this appeal.

But the defendant claims that a judgment in an action in the supreme court between the same parties and others is a bar to the plaintiff’s claim here, and is res adjudicata as against the plaintiff upon the question as to what his agreement with the defendants was. That action was commenced in the supreme court by the defendants in this, as plaintiffs, against the plaintiff in this action and others, as defendants, to restrain them from the use of a certain name and trade-mark, and from doing business under that name, or collecting moneys thereunder, and for an accounting for the moneys theretofore collected under that name, and for no other relief; and the judgment in that action was for that relief and that only. The allegation in the complaint in the action in the supreme court, in regard to what the compensation to the plaintiff in this action should be, was substantially as alleged by the plaintiff in his complaint in this action; and the plaintiff’s answer in the supreme court action admitted that allegation. There was, therefore, no issue of fact to be tried upon that question in that :action; and the terms of that agreement in respect to compensation were only alleged in the complaint in the supreme court action as one of the links in the chain upon which the right to an injunction was founded. Notwithstanding this, the plaintiffs in the supreme court action procured from the judge who tried it, the following finding of fact:

Eleventh. That these plaintiffs and the said James Mitchell, as well as these plaintiffs, agreed to employ and did employ the said •John H. Springer, for which he was to receive ten per cent, as aforesaid, which said commission should be paid to him as long as he remained in the employ of the defendants and the said James Mitchell prior to December 11,1888, and with these plaintiffs since that time.”

The eighth finding of fact in that action contains a similar finding. Obviously this finding was not a material matter within the issue which was expressly litigated and determined in that action, as no judgment could have been rendered in favor of the defendant in that action for his claim in this.

The only question to be determined in that action was whether the defendants in it had wrongfully used the name and trade-mark "then in controversy, and whether they should be enjoined from the further use of them.

Campbell v. Consalus, 25 N. Y., 613, was an action brought to foreclose a mortgage. The defense set up payment. On the trial "the plaintiffs claimed that prior to the commencement of that action an action had been begun by the defendant therein against the plaintiff’s asáignor, to cancel the mortgage on the ground that it had been paid, and that in such action the referee to whom it was referred found that the mortgage had not been paid and that .there was due thereon the sum of $2,754.88, and that the complaint in that action had been dismissed, with costs. The referee in the action to foreclose the mortgage held that the prior judgment was binding to the extent that it found that the mortgage had been paid, but that the finding of the referee in the prior action, that there was due on the mortgage the sum above mentioned, being an immaterial finding and not embraced within the issues, was no evidence whatever of the amount due and was not res adjudicata upon that point. The referee's report was confirmed, and on appeal affirmed by the general term and the court of appeals.

The court of appeals said: “ Inasmuch as the findings of the Teferree in the prior action as to the amount due was an immaterial finding and upon a matter not raised in the pleadings, it was not res adjudícala between the parties; ” that the pleadings in that action “ did not directly or necessarily require the referee to find or report how much was due on the mortgage.” But the •evidence as to the amount due was merely incidental or collateral to the issue whether anything was due. And it would appear from the case above cited that the principle of res adjudícala does not apply to matters raised only incidentally or collaterally. See, also, People v. Johnson, 38 N. Y., 63.

Hence the learned judge who tried the case committed no error in finding as he did in respect to the findings of fact and of law presented to him bearing upon the subject.

Appellants also contend that inasmuch as in the forty-first section of the answer they alleged the agreement in the complaint stated by its terms was not to be performed within one year from the making thereof, and that there was no note or memorandum in writing of the agreement, and inasmuch as there was no reply to this allegation, that therefore the defense was admitted and this action should not be maintained by reason thereof.

The first answer to this contention is that § 514 of the Code only requires replies to answers where a counterclaim is set up. This was not a counterclaim, but a defense requiring no -answer. Hew matter in an answer not stating a counterclaim is deemed controverted and may be traversed or avoided in any way. Arthur v. Homestead Fire Ins. Co., 78 N. Y., 462.

But even if this were not so, from the time of the passage of the statute of frauds to the present day, no case can be found which adjudicates a party may not recover for work actually done or services rendered under a contract obnoxious to such statute, and this action is to recover for money earned and not for future or prospective damages arising from a breach of contract.

Hone of the exceptions to the admission or exclusion of evidence were argued on this appeal, either orally or in the briefs of -counsel, and they therefore do not require any examination.

The defendants in their answer set up a counterclaim. On the trial no evidence was given in regard to it, nor indeed had the time arrived to give such evidence. But the plaintiff at the close of the case moved to dismiss the issue made by the answer as far as the counterclaim was concerned. The court very properly denied the motion. Manifestly through some inadvertence, the learned judge who tried the case signed the fourth conclusion of law presented by the plaintiff, as follows: “ The plaintiff is entitled to have judgment against the defendants dismissing the counterclaim set forth in the answer and the supplemental answer herein.” And the judgment contains the following: “And it is further adjudged that the counterclaim set forth in the answer and the supplemental answer of the defendant herein, be and the same is hereby dismissed.” This clause should be stricken from the judgment so as to allow the defendants to litigate their counterclaim upon the accounting if so advised. As thus modified the judgment should be affirmed, but under the circumstances without costs of this appeal to either party as against the other.

Daly, J., concurs.  