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and 120 New York State Reporter given tending to contradict the plaintiff's account of the arrangement, and as to the value of the property sold under the judgment in the attachment proceeding in New Jersey; whereupon the court held that there was no question to be submitted to the jury except the value of the plaintiff's property levied upon and sold under the New Jersey judgment, apparently holding that this judgment in the action in which Cole, at the instigation and for the convenience of this defendant, sued to recover from the plaintiff the amount of his indebtedness was conclusive as evidence that the contract which was alleged in the counterclaim in that action as a set-off to the conceded indebtedness of the plaintiff to the defendant was made by the defendant, and that the damage sustained by a breach thereof was a valid claim in favor of the plaintiff against the defendant in this action.

The correctness of this conclusion is the principal question presented upon this appeal; for, if that judgment was binding upon the defendant as an adjudication, the only question remaining open between the parties was the amount of damage that the plaintiff sustained by a breach of the contract, and the exceptions to rulings in relation to testimony, except to that relating to the damages, became entirely immaterial. This adjudication not having been pleaded, it was not competent as a bar or an estoppel in this action, but, as said by the Court of Appeals in Krekeler v. Ritter, 62 N. Y. 372, "as evidence of a fact in issue it was competent, although not pleaded like any other evidence, whether documentary or oral. A party is never required to disclose his evidence by his pleadings. The evidence was competent to disprove a material allegation of the complaint traversed by the answer. As evidence it was conclusive as an adjudication of the same fact in an action between the same parties.

The court properly held that the matter adjudicated between the parties in another action might be given in evidence." The only question, therefore, is whether this judgment was binding upon the defendant as an adjudication.

The general rule is stated in Am. & Eng. Enc. of Law (2d Ed.) vol. 24, p. 724, as follows:

“The persons between whom a judgment or decree in a suit is conclusive in a subsequent suit are the parties to the prior suit and their privies, and as a general rule it is conclusive only between them."

And at page 735 it is said:

“The term 'parties,' as used in connection with the doctrine of res Judicata, includes all who are directly interested in the subject-matter of the suit, and have a right and are given an opportunity to make defense, control the proceedings, examine and cross-examine witnesses, and appeal from the judg. ment or decree, in case an appeal lies.”

At page 737 it is said:

"One who prosecutes or defends a suit in the name of another to establish or protect his own right, or who assists in the prosecution or defense in aid of some interest of his own, and who does this openly, to the knowledge of the opposing party, is as much bound by the judgment, and as fully entitled to avail himself of it as an estoppel against an adverse party, as he would be if he had been a party to the record. In such case the person so participating in the suit is a party within the rule previously stated. For the same reason the prosecution or defense of ar action in the name of a merely nom


inal party will not avoid the plea of res judicata, where the question in issue has been decided adversely to the real party in interest in a prior suit in which he and the opposite party in the present suit were adverse parties."

And at page 740 it is said: "In order to invoke a judgment as an estoppel for or against the real party in interest, it is always competent to show what the real situation was, and what part in promoting or defending the suit was actually taken by him, and parol evidence is admissible for this purpose.”

In the case of Williams v. Barkley, 165 N. Y. 48, 58 N. E. 765, the court quoted with approval from 1 Greenl. Ev. § 523:

"The term privity denotes mutual or successive relationship to the same rights of property. The ground, therefore, upon which persons standing in this relation to the litigating party are bound by the proceedings to which he is a party is that they are identified with him in interest, and whenever this identity is found to exist all are alike concluded."

Applying this rule, it seems to me clear that the defendant stood in privity to Cole in the action which he brought to enforce a claim against the plaintiff for the benefit of the defendant, and that that adjudication was binding upon the corporation; and the judgment roll having been introduced in evidence, not, as the defendant claims, to contradict Cole, but as evidence in the case, it was when introduced conclusive as evidence that the contract was made and broken by the defendant, and that for the damages sustained by its breach the defendant was responsible. It follows, therefore, that upon the evidence before the court the plaintiff's cause of action was conclusively established.

It was said, however, that as the plaintiff introduced evidence as to the contract, not relying upon the judgment, he tendered an issue as to the making of the contract which, in effect, waived the conclusive character of the former adjudications. But the fact that plaintiff offered unnecessary evidence, or that the conclusive evidence did not appear until after the plaintiff had rested, does not prevent due effect being given to the evidence when it is properly in the case. To establish the competency of this judgment roll as evidence it was necessary that it should appear that the corporation was a privy and thus bound by the judgment. When that question was established by the evidence of Cole, the plaintiff then introduced the judgment roll as evidence in the case, and claimed that this judgment was as evidence conclusive, and that effect was given it by the court. There was nothing in the record that can be said to justify the conclusion that the plaintiff did not rely upon this judgment as evidence in the case sustaining his cause of action, and, as the learned trial judge correctly construed the binding effect of this judgment as evidence, we are not justified in reversing the judgment.

We think also that the court correctly determined the amount that was to be deducted from the total value of the property, and that there was no erroneous ruling upon the trial which affected the liability of the defendant. We think the letter which was introduced in evidence, written by the plaintiff to the defendant after the transaction, was inadmissible; but as that related solely to the making of the contract, and had no relation to the amount of damage sus

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and 120 New York State Reporter tained, and as the making of the contract and its breach by the defendant were conclusively established by the evidence, the admission of that letter was not an error which would justify a reversal of the judgment.

It follows that the judgment and order appealed from should be affirmed, with costs. All concur.

(91 App. Div. 56.)


(Supreme Court, Appellate Division, First Department. February 5, 1904.) 1. APPEAL-FINAL JUDGMENTS-REVIEW OF INTERMEDIATE ORDERS--NOTICE.

On appeal from a final judgment a review of an intermediate order can be procured, but only when a notice of the desired review is incorporated in the notice of appeal, as required by Code Civ. Proc. $ 1316. Appeal from Special Term, New York County.

Action by George A. Stearns against the Shepard & Morse Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGH-

Guy C. Frisbie, for appellant.
Eustace Conway, for respondent.

INGRAHAM, J. The facts in this case are stated in the opinion on the appeal by the defendant from the judgment entered upon the verdict of a jury in this action decided herewith. 86 N. Y. Supp. 391. The court submitted to the jury but one question, and that was as to the value of the plaintiff's property which was sold under a judgment in an action in the state of New Jersey, in violation of a contract made between the defendant and the plaintiff. The jury found that the value of the property was the sum of $5,266. All the other questions affecting the amount for which the plaintiff was entitled to a verdict were reserved by consent of counsel for the court. Subsequently the court entered an order which provided that from the amount found by the special verdict there should be deducted the amount of $2,900, a mortgage upon the premises sold; $1,527.75, the amount of the indebtedness of the plaintiff to the defendant, with interest; and also the amount paid to creditors of the plaintiff, other than the defendant, who shared in the distribution of the proceeds realized on the sale of the plaintiff's property in the attachment suit in New Jersey, aggregating the sum of $737.11, making a total of $4,264.86; leaving a net balance of $1,001.14--for which amount, with interest, the plaintiff was entitled to a verdict as being the net amount of the damage sustained by him; and upon the verdict as thus reduced by the court judgment was entered. From this judgment the plaintiff appeals, but does not state in the notice of appeal that he desires to review the intermediate order, as required by section 1316 of the Code of Civil Procedure.

Upon an appeal from a final judgment under that section an intermediate order which is specified in the notice of appeal, and which necessarily affects the final judgment, can be reviewed; but, after final judgment, such an intermediate order can only be reviewed upon an appeal for the judgment when in the notice of appeal the intermediate order is specified. As the notice of appeal from the final judgment does not specify this intermediate order, we have no power to review it.

As the only question presented on the plaintiff's appeal relates to the order, the judgment appealed from must be affirmed, with costs. All concur.

(90 App. Div. 453.)

LEWIS v. UPTON et al. (Supreme Court, Appellate Division, Fourth Department. January 26, 1904.) 1. NEW TRIALS-LAW OF CASE-SECOND APPEAL.

Where the Appellate Division held, on reversing a judgment for plaintiff, that the question of adverse possession was one for the jury, and in a subsequent trial the jury found for plaintiff on substantially the same evidence, the Appellate Division, on appeal from the judgment rendered on such verdict, should adhere to its former decision, and affirm the judgment.

McLennan, P. J., and Stover, J., dissenting. Appeal from Special Term, Monroe County.

Action by John T. Lewis against Eli M. Upton and others. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Affirmed.


Charles J. Bissell, for appellants.
John Van Voorhis, for respondent.

WILLIAMS, J. The judgment and order should be affirmed, with costs.

The action was brought under section 1638 of the Code of Civil Procedure, to compel the determination of a claim to real property. The plaintiff claimed he had a record title to the real property, and that he had also acquired title thereto by adverse possession. Upon a former trial of the action both these questions were submitted to the jury under the instruction of the court that the plaintiff could recover if it was found that he had either a record title or a title acquired by adverse possession. The jury rendered a general verdict for the plaintiff. Upon appeal to this court it was held that there was no evidence to support the verdict if it was based upon the claim of a record title, because the deed under which he claimed did not cover the property in question. The court also held that the question of title acquired by adverse possession was one of fact for the jury. 52 App. Div. 617, 65 N. Y. Supp. 263. Inasmuch as the court could not say upon which claim the jury based its verdict, it was compelled to reverse the judgment and direct a new trial upon the question of adverse possession alone. Thereupon the case was again tried, and the decision of and 120 New York State Reporter this court followed. The question of a record title was eliminated from the case, and the question of title by adverse possession was submitted to the jury. The plaintiff again had a verdict. Upon an appeal to this court, it is now claimed there was no question for the jury upon this issue, and that the trial court should have held, as matter of law, that the plaintiff acquired no title to the property by adverse possession. This court having once passed upon that question on practically the same class of evidence, we should adhere to our former decision, and leave the question to be considered by the Court of Appeals, should the defendants desire to take the case to that court. If this court had held upon the former appeal that there was no question for the jury as to adverse possession, the case could then have gone directly to the Court of Appeals; but, under the decision then niade, a new trial became necessary, and it was had, at considerable expense to the parties, and the result of such trial should not now be nullified by reversing our former decision. Moreover, upon the merits we are of the opinion that the various questions involved in the claim of title by adverse possession, including the occupation and cultivation of the property, and the protecting of the same by substantial inclosure, were properly submitted to the jury, and the evidence was sufficient to support the verdict rendered. No errors in the admission or rejection of evidence or in the charge of the court were committed, calling for a reversal of the judgment.

The judgment and order should therefore be affirmed, with costs. All concur, except McLENNAN, P. J., who dissents in an opinion in which STOVER, J., concurs.

The action was commenced on the 19th day of March, 1895, under section 1638 of the Code of Civil Procedure, to compel the determination of the claim of title made by the defendants to the premises described in the complaint. The answer denied plaintiff's title and possession, and alleged title and possession in the defendants. Plaintiff replied, averring that defendants' title is void under the champerty act, and setting up adverse possession as against the defendants. As appears by the judgment appealed from, three specific questions were submitted to the jury, as follows: First. Was the plaintiff, or were those whose estate he has, in possession of the real property in lot. 43, in dispute in this action, for one year before March 19, 1895, the date of the commencement of this action, claiming said premises in fee? Secondo at the time of the commencement of this action, had the plaintiff acquired title in fee to the premises in dispute by adverse possession thereof for 20 years or upwards ? Third. Are the deeds from the heirs of Oliver Phelps, under which the de fendants, except the defendant Hubbell, claim title to the premises in dispute, champertous and void for that reason? The jury answered each of said questions in the affirmative, and thereupon a judgment was entered in favor of the plaintiff, "that the defendants, and every person claiming under them by title accruing after the filing of the notice of the pendency of this action, be, and are hereby, forever barred from all claim to any estate, claim, or interest of any kind or nature in the lands described in the complaint, or any lien thereon or easement therein.” The judgment then contained a description of the lands, which is precisely the same as contained in the complaint, and further awarded to the plaintiff the sum of $727.38 for his costs of the action. From such judgment, and from the order denying defendants' motion for a new trial, this appeal is taken.

McLENNAN, P. J. (dissenting). The tract of land which is the subject of this controversy contains 26.4 acres, is substantially 400

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