
    Michael Notara et al., Appellants, v. Constantine De Kamalaris, Respondent.
    (Supreme Court, Appellate Term,
    January, 1898.)
    1. Bar — Another action pending — When another cause of action» - need not be pleaded by the defendant.
    Where the plaintiffs bring an action for the conversion of the proceeds of a single consignment of cigarettes alleged to have been intrusted to the defendant for sale on commission, the defense of another action pending is not made out by proof of another action,' pending in the 'City Court of New York, a court of record, brought by the defendant against the plaintiffs, in which he seeks to recover commissions as their agent during 'a term of five years upon various sales made by him, as the rule is that, where the first action is commenced! in a court of record, the defendant need not usually interpose, as a-counterclaim, a cause of action which he may have against the plaintiff, but may bring an independent action therefor.
    S. Evidence — Admissions of an agent, in custody upon a. criminal! charge — Proof.
    Admissions made by an agent, although in the custody of a detective-officer on a charge of misappropriating the proceeds of sales - of his» principal’s goods, when .not induced by threats, promises or deception, are competent against the agent and may be proved by the testimony-of the officer to whom they were made.
    Appeal by plaintiffs from a judgment of the Sixth District-Court in favor of defendant.
    
      A. Nelson, for appellants.
    J. P. Niemann, for respondent.
   McAdam, J.

The pleadings in the court helow were oral. The complaint was for' conversion,” and the answer was “ general' denial; another action pending; res adjudicataj plaintiffs not real party; demand'bill; counterclaim.”

It was claimed at the trial by the plaintiffs that- they intrusted with the defendant for sale on commission a quantity of Turkish cigarettes, and that he had sold them and converted the proceeds to his own use. The defendant, on the other hand, insisted that the cigarettes were sold to him on ■ credit, ■ and that the plaintiffs were indebted to him in the sum of $255, being a 5 per cent, deduction which he contended they agreed to allow him on the gross amount paid by him on his purchases.from them.

No question was raised in the court below as to whether trover . would lie, and that subject need not, therefore, be considered now.

The defendant introduced in evidence the pleadings in an action brought by him against these plaintiffs in the City Court of New York, wherein it was sought to recover the 5 per cent, aforesaid, and claimed that if the plaintiffs had any cause of .action it should have been pleaded as a counterclaim and litigated in that suit, which was pending when this one was commenced. The defendant cites Bartholomay Brewing Co. v. Haley, 16 App. Div. 485, which holds that an action to recover damages for a breach of warranty on the sale of goods is a bar to a subsequent action by the vendor to recover a balance of the purchase price ,of .the goods, upon the theory that the identity of subject-matter and contract required but one adjudication to determine the entire controversy, which ought to be settled in the action in which jurisdiction first attached. In that case both parties conceded the contract of sale and the identity of the goods, and the single dispute was as .to whether a warranty was one of the conditions of the contract. Here there is no such concession as to identity of ■contract or subject-matter. The dealings between the plaintiffs and defendant extended over a series of years. The plaintiffs sought to recover on an' arrestable cause of action for moneys misapplied or converted by the defendant as their broker, or agent in the course of his employment, while acting in a fiduciary capacity (Consol. Act, § 1304), while the defendant by his. action in the City 'Court undertook to collect a claim alleged to be due under a special contract to pay him 5 per cent, on the amount paid by him on sales to him by the plaintiffs. Apart from this dissimilarity there is nothing in the pleadings or in the record showing that the different matters were so blended or interwoven that the determination of the City Court action would effectually adjudicate the rights of the parties, and we cannot infer that such result would necessarily follow.

It is not enough that the transactions involved in and giving rise to the two actions are the same (Stowell v. Chamberlain, 60 N. Y. 272), and the bare fact that two causes of action spring out of the same contract does not ipso facto render a judgment in one a bar to a suit on the other (Perry v. Dickerson, 85 N. Y. 345), for a judgment in a former suit is a bar to a subsequent action only when the point or issue in question is the same in both. Marsh v. Masterton, 101 N. Y. 401.

If the first action be commenced in'a court of record the party sued need not, as a rule, interpose any cause of action he may have as a counterclaim thereto, but may bring an independent action to recover for it. Light v. Redding, 4 E. D. Smith, 285; Halsey v. Carter, 1 Duer, 667; Gillespie v. Torrance, 25 N. Y. 306, 310; Brown v. Gallaudet, 80 id. 413; Ruppert v. Haug, 87 id. 141, 144. The Marine (now City) Court has since the act of 1872 (chap. 429, § 1) been a court of record to and for all intents and purposes,” and, therefore, within the rule as to counterclaims laid down in the cases just cited.

The Code provisions requiring certain counterclaims to be pleaded in actions in Justices’ Courts (Code, § 2947) have no application to the City Court.

The defendant, therefore, failed to sustain his plea that there was another action pending for the same cause.

It sufficiently appears from the evidence that the plaintiffs were the real parties in interest and authorized to maintain the action; so there is no merit in the objection "that they were not the real parties in interest.

" As to the merits. If there were nothing in the case but the issue whether thé cigarettes were purchased by the defendant'or intrusted to him to be sdld on commission, we might affirm the judgment on the conflicting ‘ evidence. But certain exceptions taken by the plaintiffs during the trial require consideration.

■ It appears that prior ,to bringing suit the plaintiffs caused the defendant’s arrest on the charge of misappropriating the proceeds of the sales made, and on the trial of this action they undertook to prove that the defendant had made admissions concerning the nature of his transactions with the plaintiffs, which they deemed material to establish their cause of action. ’ They called Michael J. Rein, an officer connected with the detective bureau, as a witness, and interrogated him as to the subject-matter of the suit. The defendant’s counsel obtained leave to examine the witness voir dire, and on such examination it appeared that the admissions were made while"the defendant was in the custody of the officer and while arraigned in a magistrate’s court. The plaintiffs then attempted to resume their examination in chief, but the questions put were objected to and excluded under exception. The defendant seeks now to criticise the form of the questions, but all objection to form must be deemed obviated by the ruling of the justice, in which he said: “I will sustain objections to anything of this character,” for it was useless to change the phraseology of the question for the mere purpose of having it excluded when that result was inevitable.

The rule is that where a party to a civil action has made admissions of facts material to the issue in the action, it is always competent for the adverse party to give them in evidence; and it matters not whether the admissions were in writing or by parol, nor when nor to whom they were made. Cook v. Barr, 44 N. Y. 156; Wood’s Pr. Ev. 494.

We held in Nasanowitz v. Hanf, 11 Misc. Rep. 157, that where on a previous trial óf an action a witness had testified- to certain, facts, any person present at the time -was competent to testify in respect thereto, and. that there was no necessity for producing the stenographer who took the notes of the evidence. ' -

But it is claimed by the defendant that different rules apply when the statements are made, by a person while in the custody of an officer under a criminal charge or while being arraigned in a criminal court.

There is no warrant for such claim. The term admission ” is usually applied to civil actions, and “ confession ” to acknowledgments of' guilt in criminal prosecutions. Where statements made by a defendant to. an officer involve- him civilly, they may be received as an admission' against interest, even though they might by rejected as a confession in a criminal court. 1 Ph. Ev. (5th Am. ed., with C. & H.’s notes) star p. 432; and see, also; Tayl. Ev., § 724, from the 8th Eng., ed.; 1 Greenl. Ev., § 193. Many learned jurists have considered confessions as the highest and most satisfactory evidence of guilt. Roscoe’s Crim. Ev. (7th ed.) 39.

The circumstances under which the confession is made may affect the value to be given to, the evidence, but do not affect its competency when offered as an admission against interest in a purely civil proceeding.

It did not appear that the admission was made under the influence of fear produced by threats, or by promises or deception; and it would have been admissible even in a criminal prosecution. Crim. Code, § 395; Fralich v. People, 65 Barb. 48, 51; Hartung v. People, 4 Park; Rep. 319; O’Brien v. People, 48 Barb. 274, 279, 280. Prima facie., as a matter of course, a confession by the prisoner is admissible as evidence against him, and it is for him to show legal grounds for excluding it. Roscoe’s Crim. Ev. (7th ed.) 39; Commonwealth v. Sego, 125 Mass. 210, 213. And it is not sufliciemt to exclude a .confession by a prisoner that hei was under arrest at the time, or that it was made to the officer in whose custody he was, or in answer to questions put by him, or that it was made under hope or promise of a benefit of a collateral nature. Cox v. People, 80 N. Y. 500.

In People v. Rogers, 18 N. Y. 9, 12, where the prisoner was tried for murder,' Judge Denio, writing for the court, said: The objection to the testimony of the policeman assumes that no admission by a person accused of crime, made to an officer who had him in custody, can be received. It was not pretended that any threats, promises or other inducements had been held out to the prisoner, but the .objection was placed upon the ground first mentioned. I have looked carefully into all the cases referred to by the defendant’s counsel in support of that position, and many others, and do not find that it has ever been held that the single fact of the prisoner being in custody was sufficient to exclude his declarations, whether made to the officer or to third persons-. On the contrary, many of the cases, upon the competency of confessions, show that the prisoner was in custody at the time, and the question generally has been, whether the confession was voluntary, or- was influenced by what was said' to him by the officer or by others.”

It is apparent, therefore, that the rulings by the justice as to the admissibility of the . admissions as evidence in a civil action were stricter than would have been authorized if the statements had been offered as confesssions in a criminal prosecution.

For error in excluding this evidence the judgment must be reversed and a new trial ordered, with costs to the appellants to ,abide the event.

Daly, P. J., and Bisohoff, J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event. -  