Davis Kowal, Appellant, v. David Lehrman and Fannie Lehrman, Respondents

Davis Kowal, Appellant, v. David Lehrman and Fannie Lehrman, Respondents. Second Department, April 21, 1911. Judgment — res adjudicata— actions between different parties involving the same issue — evidence — ratification. Where a wife without authority loans money belonging to her husband, an action brought by him to recover it is some evidence that he has ratified her act. . A judgment in one action is not conclusive in a second action merely because the same question was at issue- in the first suit before a court of competent jurisdiction. In order for the judgment in the first action to be res adjudicata in the second it must also appear that both actions • were between the same parties or their privies. Thus, a judgment against the plaintiff in an action brought by the wife to recover the money which she had loaned to the defendants, does not bar an action by the husband to recover the same money. Appeal by the plaintiff, Davis Kowal, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 15th day of December, 1910, dismissing the complaint. John Manheimer, for the appellant. Emil P. Korkus, for the respondents. [MAJORITY — Per Curiam :] Per Curiam : This action is brought to recover money loaned by plaintiff to defendants. The only witness called for plaintiff was Fannie Kowal, his wife, who testified that at the request of defendants she loaned them money plaintiff in .this action. which belonged to her husband, the Although there was no evidence of express authority on his part to make such loan, if the act was ■ unauthorized he might ratify it, and the bringing of this action may be deemed some evidence of ratification. It appeared that some three months before this action was brought another action1, was brought in the name of the witness Fannie Kowal, to ¡recover the same .money, and in that action, after a trial upon the merits, judgment was rendered dismissing the complaint. The. witness was asked on cross-examination'whether .in. that Suit she did not testify that the money which was loanell belonged to her. She denied it, and asserted that she then tóstified that it belonged to her husband, as she did upon this occasion. ’ At the close of her evidence the trial judge dismissed the complaint upon the ground that the judgment in the .former! action wás res adjudicóla. In this we think he eired. A judgment is not conclusive in a second' action merely because the same question was at issue in a former action before a court of competent jurisdiction. The subsequent action must be between, the same parties or ■tlieir privies. (Reynolds v. Ætna Life Ins. Co., 160 N. Y. 635; Collins v. Hydorn, 135 id. 320.) This action was not between the same parties as the former one,, nor does the plaintiff in this action claim under the plaintiff in the. former action. It is quite possible that judgment was rendered for the defendant in the former action because it appeared that the plaintiff therein was not the real party in interest. In any event, as the evidence stands, tha| judgment was.not conclusive, and the judgment of the Municipal Court must be reversed and a new trial ordered, costs to atjide the event; : Jenks, P. J., Hiesoh'b|erg-, Bürr, Woodward.and Rich, JJ., concurred.' | ■Judgment of the Municipal Court reversed and new..trial ordered, costs, to abide the event.