
    Pierre Cauhape, App’lt, v. Parke, Davis & Company, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 27, 1887.)
    
    Res ad judicata—Finder g- of a kefebee—Effect of.
    The plaintiff sued upon an alleged contract with the defendant. To1 prove the existence of that contract, he put in evidence the judgment roll in a prior suit between the same parties, wherein another referee had found that such a contract was made, but had refused to grant any relief by reason of the cause of action based thereon, upon the ground that he had no jurisdiction to do so. Feld, that the existence of this contract was not res adjudícala in the previous action in such a sense as to render the former finding of fact binding upon the defendant in this-suit.
    Appeal from judgment entered on the report of a referee.
    
      Howard Y. Stillman, for app’lt; William, P. Chambers, for resp’t.
   Bartlett, J.

—The plaintiff sues upon an alleged contract with the defendant. To prove the existence of that contract, he put in evidence before the referee the judgment-roll in a prior suit between these same parties, where another referee had found that such a contract was made, but had refused to grant any relief by reason of the cause of action based thereon, upon the ground that he had no jurisdiction to do so. The plaintiff in the case at bar relied solely upon this finding, as a former adjudication establishing his-contract; but the referee has declined to give it this effect, and has dismissed the complaint for a failure to prove the existence of the contract sued on.

We agree with the referee that the existence of this contract was not res adjudieata in the previous action in such a sense as to render the former finding of fact binding upon the defendant in this suit.

It is true that Pierre Cauhape, the plaintiff there and here, recovered a smafi judgment in the prior action, but that was founded not at all upon this contract, but upon another and different agreement of earlier date. So far as the contract here in question was concerned, the defendants were successful in the former suit. Upon an appeal, they could not have been heard to complain of the action of the court in respect to this contract, for the refusal to enforce it on the ground of want of jurisdiction, was a decision in their own favor. So long as the referee in that case denied the plaintiff any relief based on the contract, his finding that it existed was wholly needless and immaterial. Before that finding could successfully be invoked against the defendants as a prior adjudication, we think it would have to appear that it constituted a decision, or the basis of a decision, from which the defendants could have appealed.

The judgment should be affirmed, with costs.

Van Brunt, C. J., and Daniels, J., concur.  