
    William C. Bulmer, Appellant, v. Nicholas Young and Martin A. Metzner, Respondents.
    Res ad judicata — when a question withdrawn from the jury on the trial of an. action cannot he litigated in a second one. . ■
    Where the complaint, in an action to recover the price of a gas .engine sold by the plaintiff to the defendants, alleges that the plaintiff instructed a competent man in the defendants’ employ in the operation and oiling of the engine as required by the contract, and the answer admits such allegation but alleges that the engine “was never put up in good running order, and that the'same would never operate in good running order, although the said defendants had a competent man to run the same,”- a judgment in favor of the defendants is a harto a subsequent action brought by the assignee of the original plaintiff on the same state of facts, notwithstanding that the judge before whom the first action was tried withdrew from the j ury the question of the competency of the defendants’ employee, and that the complaint in the second action alleged that the plaintiff’s assignor instructed “ such men in the employ of the said firm, as they furnished and designated for that purpose, how to run and clean said engine.”
    The remedy of the plaintiff, if the action of the judge on the former trial was improper, was by an appeal from the judgment.
    
      Appeal "by the plaintiff, William C. Buhner, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 23d day of February, 1899, upon the decision of the court, rendered after a trial at the Queens County Special Term, sustaining their demurrer to the complaint.
    
      Howard A. Sperry, for the appellant.
    
      Daniel P. Hays, for the respondents.
   Woodward, J.:

While not disposed to extend the doctrine of res adgudicata, we are clearly of opinion that the judgment in the case at bar should be affirmed. Plaintiff’s assignor entered into a contract with the defendants to furnish and set up a second-hand gas engine, which was guaranteed for a period of one year. It was provided in the contract, among other specifications, that plaintiff’s assignor should instruct a competent man in defendants’ employ in the operation and oiling of the engine. The engine was put in and instructions were given as provided, and the defendants neglected or refused to' pay the contract price for the engine. Plaintiff’s assignor brought an action to recover the agreed price of the engine, alleging in his complaint, with the other necessary averments, the instruction of a competent man in defendants’ employ. Defendants in answering admitted the instruction of the competent man in their employ, but alleged that the engine l£ was never put up in good running order, and that the same would never operate in good running order, although the said defendants had a competent man to run the sameS Upon the trial of the issue thus raised the jury found for the defendants, and the judgment entered upon that verdict has never been appealed from.

Plaintiff, as the assignee of the original plaintiff, now seeks to bring a new action upon the same state of facts, except that he alleges in his complaint that plaintiff’s assignor instructed “ such men in the employ of the said firm, as they furnished and designated for that purpose, how to run and clean said engine; ” and because of the fact that the learned trial court in the original action withdrew the question of the competency of defendants’ employee from the jury, plaintiff urges that the question w;as not litigated and that he is not estopped from reopening the controversy by reason of the former adjudication.

■ It is possible that in a litigation in which the question of the competency of defendants’ employee was in issue, the judgment- would not estop the plaintiff from showing the contrary; but in the action brought by plaintiff’s assignor the issue tried was whether the engine put' into the establishment of the defendant's was capable of working in a proper manner, whether it was. “ put up in good running order,” and so long as the judgment'is unreversed that question cannot be retried, even though the court erred in withdrawing from the jury the question of the competency of defendants’ employee who is conceded to have been instructed as to the running of the engine. In the original action the plaintiff averred that he had instructed a competent man in the defendants’ employ, in-accordance with the terms of the agreement. The defendants admitted that allegation and averred that they had a competent man to run the engine; and the 'only question for the jury to deteh mine was whether the 'engine was “put up in good running order.” Even should the plaintiff now be allowed to show that the defendants’ employee was not competent, it would not disturb the question of fact determined upon the former litigation, that -the engine was not put up in good running order, and the action would, therefore, be unavailing.

If there was error on the former trial the remedy was by an appeal, not by a new action in which the material question of fact ' disposed of would have to be rehtigated; the judgment in the original action cannot be attacked collaterally, and that is the effect of the action now before us. If the plaintiff has a right of action upon the original contract because of an alleged error on the part of the trial court in not submitting an incidental question to the jury — a question which was not raised by the pleadings—■ then any litigant' who is not satisfied with a verdict may allege error, and, by amending his pleadings, may have his whole controversy reheard. ' There is no such law in this State. “ The facts actually decided by an issue in any suit,” say the court in Blair v. Bartlett (75 N. Y. 150, 153), “cannot be again litigated between the same parties, and are evidence between them, and that conclusive, for the purpose of terminating the litigation ; and so are the facts alleged by one party and directly admitted by the other.”

The judgment appealed from should be affirmed, with costs.

All concurred, except Hirsohberg, J., absent.

Judgment affirmed, with costs.  