The East New York and Jamaica Railroad Company, Respondent, v. James H. Elmore, Appellant

The East New York and Jamaica Railroad Company, Respondent, v. James H. Elmore, Appellant. (Argued May 14, 1873 ; decided June 10, 1873.) Where a former suit is set up as a bar to a cause of action, the .fact that upon the trial of the prior action evidence was given not wholly irrelevant to the issues therein, and also relating to the transaction upon which the cause of action in suit arose, is not sufficient to bar the claim where it was not within the issues and was not submitted or passed upon in such prior action. This was an action to recover a sum of money alleged to have been received by defendant while treasurer of plaintiff. The answer set up a counter-claim. This was excluded upon the trial, and a verdict ordered for plaintiff, upon the ground that the counter-claim had been passed upon, and determined adversely to defendant, in a former action in the Superior Court of the city of New York between the same parties. It appeared that evidence was given upon the trial of the1 former action not wholly irrelevant to the issues therein, and also relating to the transactions now alleged by way of counter-claim; but it also appeared that the claim was not within the issues, nor was it submitted to or passed upon by the court in the former action. Held, as above. (See HitcMn v. Campbell, 2 ¥m. Black. R., 827 ; Snider v. Cray, 2 J. R., 227; Hale v. Andreus, 6 Cow., 225; Phillips v. Beriek, 16 J. R, 136). Samuel Hand for the appellant. John E. Parsons for the respondent. [MAJORITY — Allen, J.,] Allen, J., reads for reversal and new trial. All concur. Judgment reversed.